Federal Vaccine Mandate for Employers
Weeks ago President Biden asserted that his administration will require employers with more than 100 employees, health care workers and employers engaged in federal contracts to require their workers to be vaccinated or be tested for COVID on a weekly basis.
As to federal contractors that promise was met via a guidance issued by the Safer Federal Workforce Task Force. A regulation, that likely will provide more details, is scheduled to be issued October 8, 2021. Employers that are engaged in federal contracts that are covered by the guidance and regulation should highlight the December 8, 2021 vaccination deadline or be compliant at the start of the federal contract, whichever date is later. In addition to the vaccine mandate the rules also require masking and social distancing for employees.
Outside of federal contractors, the vaccine mandate will apply to any employer with more than 100 employees or any health care facility that receives federal medicare or medicaid money. Employees who do not get vaccinated must get tested weekly. More specific details have yet to be announced for the mandate that affects up to 100 million Americans. Those details are likely coming in an OSHA regulation.
Will the mandate apply to tribal employers?
The regulation will be promulgated under emergency rules used by the federal Occupational Safety & Health Administration (OSHA). Since OSHA is a law of general applicability, there is an argument it applies to tribal employers and an argument it does not apply. Laws of general applicability generally apply to all employers, but that conclusion does not account for the unique status of tribal employers that possess the benefit of sovereignty.
A recent article in the Norman Transcript included the following quote that raises the possibility that the unique status of tribal employers is a consideration:
“There are certainly differences with tribal governments and their sovereignty and we always are going to respect that and keep that front and center,” said Dr. Cameron Webb, a senior policy advisor for the White House COVID-19 response team. “But with regard to this employer requirement, for folks who have more than 100 employees the OSHA regulations are the rule that’s going to delineate all those details. But again, we’ve always really put a premium on focusing on the sovereignty of tribal governments. That’s a unique relationship and one we’re going to honor.”
Because of the uncertainty regarding the application of the law to tribal employers and because of the financial risks associated with potential fines, getting a legal opinion from your legal counsel is a good idea either now or when the regulation is published. Fines for noncompliance could be close to $14,000 per violation.
Is the mandate legal?
The United States Constitution grants finite, enumerated powers to the federal government and reserved police powers to the states. There is an argument that a federal vaccine mandate is not a power that Congress could exercise and therefore did not exercise in creating the Occupational Health & Safety Act (OSHA). Therefore, a flaw exists in President Biden’s interpretation of OSHA wherein he asserts that the federal government can mandate vaccines for 80 million American workers. Legal authority to mandate vaccines is not in OSHA and the Department of Labor cannot interpret OSHA as providing that authority in an OSHA regulation. The use of regulations to impermissibly expand the power of a federal agency was recently curtailed by the courts when the Centers for Disease Control promulgated a rule placing a moratorium on evictions. See Alabama Association of Realtors v. Health & Human Services (U.S. Supreme Court, August 26, 2021).
On the other hand, some will argue that the United States Supreme Court decision in Jacobson v. Massachusetts (1905) wherein the court upheld a vaccine mandate favors President Biden’s action. That is the holding of the decision but a closer look reveals that the mandate was issued by a state government exercising its police powers and therefore not a federal action. That important distinction will likely create an argument about the limited powers reserved for the federal government under its Constitution.
The Biden administration will also argue that its rules are allowed under the flexible and expansive commerce clause in the Constitution. That argument will assert that the mandate is focused on employers engaged in interstate commerce and therefore constitutional. The counter argument is the mandate is actually targeted to employees making individual medical decisions and that is not interstate commerce under the United States Supreme Court’s ruling in 2012 addressing the constitutionality of the Affordable Care Act (See NFIB v. Sebelius).
Are there practical and financial challenges with the mandate?
The anticipated regulation will include a weekly testing option for non-vaccinated employees. That appears to be a simple alternative until the details are examined. The testing alternative generates questions as to whether the costs associated will be the employer’s responsibility and whether employees should be compensated for the time consumed getting tested. Health insurers may take the position that its policies do not cover broad mandates to screen for infection and the policy is only triggered when a doctor orders the test. If employees are responsible for the cost of the weekly test that will create an incentive for employees to consider vaccination but will the OSHA regulation allow employers to shoulder employees with those costs?
Additionally, how will the regulation address employees working from home? Will the regulation allow religious and disability based exemptions? Will the regulation be narrowly tailored to allow persons with natural immunity avoid the vaccine? What will the regulation say about booster shots and annual re-vaccination?
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