The Impact and Legality of Biden’s Vaccine Mandates

Nate Seibert

Thanks to efforts from the government to advertise the effectiveness of and accessibility  of COVID-19 vaccines, the vaccinated population across the U.S. has grown exponentially, with now over 70 percent of U.S. adults vaccinated. However, the Biden administration believes that more vaccinations are required in order to effectively re-open the nation, which is why it has attempted to effectively mandate the vaccine for many unvaccinated working Americans.

The Labor Department’s Occupational Safety & Health Administration (“OSHA”) issued the details for an Emergency Temporary Standard (“ETS”) vaccine policy in which U.S. companies must ensure their employees receive the final shot of one of the COVID-19 vaccines by January 4, 2022 or regularly test for COVID-19. OSHA will oversee on-site inspection to ensure that companies follow the mandate’s rules. Companies that do not comply could suffer penalties of $13,653 per violation and up to $136,532 for a willful or repeated violation.

The rules issued by OSHA would apply to companies with 100 or more employees, which totals approximately 84 million people. All unvaccinated employees must begin wearing masks indoors by December 5, 2021 and provide a negative COVID-19 test on a weekly basis after January 4, 2022. Companies are not required to pay for these weekly tests unless bound by labor contracts, or state or local laws. The ETS mandate would not apply to at-home workers, nor to employees who work exclusively outdoors. Also, exemptions would be granted to workers who cannot receive the vaccine due to religious beliefs or medical conditions.

The Biden administration also announced a vaccine mandate with no weekly testing option for the Department of Health and Human Services’s Centers for Medicare & Medicaid Services (“CMS”). CMS workers in facilities participating in Medicare or Medicaid must be fully vaccinated. This rule applies to approximately 76,000 facilities and 17 million workers, and will go into effect on January 4, 2022. Facilities which violate the mandate could risk federal funding.

The Biden administration ordered similar COVID-19 vaccine policies in the past. Pursuant to an Executive Order released by President Biden on September 9, 2021, “[e]ach agency shall implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.” This particular mandate went into effect on November 22, 2021. Federal contractor employees will also have a vaccine mandate which will go into effect on January 18, 2022.

The ETS vaccine mandate is expected to have a positive impact on the economy. Many have pointed to a direct correlation between increased vaccination and people returning to work. A senior Biden administration official citing a Goldman Sachs study, claimed “these kinds of vaccination requirements could lead to up to 5 million Americans reentering the workforce, as they feel safer going back to work and experience fewer disruptions to things like childcare. With increased vaccination, industry experts anticipate that consumers will engage in more entertainment and tourist-related activity, such as travelling, dining out, and attending concerts. The mandate will also decrease COVID-19 cases among employees, which has in particular affected ports, factories, and other operations critical to the supply chain.

Much uncertainty surrounding the legality of the ETS vaccine mandate remains. The ETS mandate has drawn fierce opposition from Republican State Attorney Generals and some private businesses, with lawsuits being filed throughout the U.S. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit stayed the mandate’s enforcement pending judicial review, concluding that it “raises serious constitutional concerns.” The U.S. Court of Appeals for the Sixth Circuit was randomly selected as the court to determine whether the mandate is legal through the multi-circuit litigation process. The Sixth Circuit has not issued its ruling, but in the interim, the Biden administration has requested that the Sixth Circuit dissolve the Fifth Circuit’s stay on enforcing the ETS mandate.

While the mandates are expected to help the economy and re-open the country, they could also be deemed a constitutional violation of rights. The impact that the COVID-19 mandates will have upon America is yet to be fully seen.