Biden’s mandates don’t go far enough
President Joe Biden’s workplace vaccine mandates are too little, too late. While some argue he is flexing “the full force of his presidency” in an “all-out effort to curb the surging COVID-19 delta variant,” these initiatives pale in comparison to what they should be.
Foremost, the president directed the Labor Department to issue an emergency temporary standard, pursuant to its congressionally delegated authority under the Occupational Safety and Health Act of 1970, requiring private employers with 100 or more employees to ensure their employees get vaccinated against COVID-19 or show weekly negative test results. For reference, that act passed with overwhelming bipartisan support before Republican President Richard Nixon signed it into law.
The act empowers the Labor Department to issue such a standard if the Labor secretary determines COVID-19 exposes employees to “grave danger” and the standard is “necessary to protect employees from such danger.” When this standard is inevitably challenged as executive overreach, Labor Secretary Marty Walsh will need to demonstrate it was “supported by substantial evidence.” When he does so, the emergency standard will endure until the Labor Department promulgates a permanent standard in a few months.
There is, of course, substantial evidence that COVID-19 causes grave danger to workers. Just last week, the Centers for Disease Control and Prevention published new research showing “rates of COVID-19 cases, hospitalizations, and deaths were substantially higher in persons not fully vaccinated compared with those in fully vaccinated persons.” And the recent rise in hospitalizations and deaths caused by the virus, despite widespread alternative preventative measures like masks and social distancing, demonstrates the necessity of vaccines. Accordingly, assuming the Labor Department’s standard follows Biden’s direction, the courts should uphold it (despite the arguments of critics).
Which begs two questions: Why impose vaccines only on employees of large employers? And why give those employees the option of refusing the vaccine? Workers at small and midsized businesses are in just as much danger from COVID-19 as workers at large employers — more so, in fact, given that larger employers are much more likely to provide health insurance to employees than smaller employers, and employees with health insurance are more likely to secure effective medical care.
Furthermore, excepting workers with disabilities and religious beliefs who cannot get vaccinated, vaccines are necessary to staunch the grave danger from COVID-19. Testing might detect the virus too late to prevent exposure, given that the popular antigen tests “perform best in symptomatic people.”
Moreover, some reporting has implied that Biden ordered all federal contractors to require their employees to get vaccinated. He did not. Rather, his order requires the Safer Federal Workforce Task Force to issue guidance concerning employee vaccines, and he directed that new or renewed federal contracts include language incorporating that guidance.
Therefore, for a federal contractor with fewer than 100 employees, the vaccine mandate becomes effective only if the contractor signs a new federal contract or renews a current one, and even then, it would cover only those employees working on that contract. Such triggering events might be years away.
Finally, the president directed federal agencies to require employees to get vaccinated, and he will require the same of health care facilities receiving Medicare or Medicaid reimbursement. These actions are appropriately broad, but far too late. The president should have mandated vaccines in March or April when most American adults became eligible to get them. After all, nothing in federal law requires the Labor Department to wait
for full CDC approval of one of the COVID-19 vaccines before mandating them.
In fact, he still has declined to mandate masks in the workplace except for unvaccinated employees of federal agencies and onsite contractors and unvaccinated health care workers. That action should have taken place on Jan. 20, 2021, as he began his inaugural address.
Of course, detractors have argued the president’s actions go too far because the burden on employers will be too onerous. Not so. In fact, mandating vaccines minimizes recurrent burdens like administering COVID-19-related leaves and ensuring appropriate staffing amidst pervasive absenteeism. And a vaccine mandate for all employees, except those exempted due to disability or religious beliefs, imposes a one-time burden of tracking vaccines instead of a weekly burden of tracking negative tests.
Biden’s vaccine mandates are the least the federal government could do to protect workers. And they come months too late.