Federal Government to Require COVID-19 Vaccines or Testing For Companies with Over 100 Employees

President Biden announced a new national strategy, the “Path Out of the Pandemic” to combat the threat of the Delta variant of the Covid-19 pandemic. The Delta variant has caused a new spike in cases, with about new 150,000 cases and over 1,000 deaths per day. The new strategy includes the following:

• All federal employees will be required to have proof of vaccination or face termination.
• All federal contractors will require provide proof of vaccination for their employees or their contracts with the federal government may be terminated.
• All private companies with over 100 employees will be required to provide proof of vaccination for their employees or weekly testing for Covid-19 or they will face up to $14,000 in fines per violation.

The new rules will be implemented through the Occupational Safety and Health Administration (OSHA) from the Department of Labor and the implementation will take up to 90 days. The new rules will impact nearly 80 million workers in the United States.

Is President Biden’s Private Employer Vaccine Mandate Constitutional?

The White House is relying on the existing OSHA structure to compel large private employers to check for vaccinations or negative Covid tests. OSHA is an agency with rather broad authority, as OSHA includes workplace conduct from hand washing to placement of wet floor signs. Indeed, the pushback against mask and vaccine mandates is rather surprising if no one disputes that OSHA has the authority to mandate hand washing after going to the restroom.

Indeed, federal and state governments have long exercised authority to mandate vaccinations in certain areas. The military and schools can compel vaccinations for attendees. President Washington required smallpox inoculation for the Continental Army. Children are required to be vaccinated against chickenpox and a wide range of other diseases before being permitted to attend school. While the military and public schools are generally areas under a government’s direct control, the federal government already has broad powers to mandate other acts necessary for the general welfare.

OSHA enforcing a vaccine mandate during a global pandemic is as reasonable as OSH enforcing a mandate to wash hands during ordinary times. There are over 1,000 American deaths a day and those who do survive Covid may sustain long-term damage. Such an extraordinary crisis may require such an extraordinary response.

However, this power must be heavily checked by the judiciary. Ordinarily, Americans have a right to bodily autonomy and forced medical procedures have not had a happy history in American jurisprudence. The Supreme Court used to approve of forced sterilizations under the theory that mentally disabled people should not be permitted to reproduce. The case for forced sterilizations was eventually overturned but the original opinion is still appalling.

For those who are fiercely pro-vaccine, imagine if the government also mandated that people ingest Ivermectin, a parasite removal drug that has become popular with the anti-vaccine movement as an alternative to the vaccine.

At the very least, vaccine mandates should always have FDA approval and should always give a choice. Americans should have the option to remain unvaccinated if they completely disengage from society. Termination from employment is acceptable consequence for refusal to take the vaccine. Prison time is not an acceptable consequence nor should a government be able to literally hold someone down to inject a vaccine. Exceptions from a mandate should be honored provided that those seeking the exception can provide proof from a licensed medical professional.

Overall, a vaccine mandate has become necessary as Covid is killing countless Americans. However, the government’s authority to make such a mandate must be tempered by safeguards to ensure that it is not abused.

Why Only Employers With Over 100 Employees?

The private employer mandate only extends to employers with over 100 employees. Federal labor laws have a long history of going into effect based on the number of employees in a business – 5 employees, 25 employees, 50 employees, 100 employees, etc. This structure has generally been upheld as the federal government is aware that certain regulations can be a greater burden on smaller businesses.

With regard to the pandemic, it makes sense to compel only the largest businesses to mandate vaccination. A virus spreads more quickly when there are more people gathered in one place. Social distancing becomes more difficult when the number of people in an office is greater. The mandate’s “discrimination” against large employers should be the least controversial part of the plan.

What If I Work In a State That Forbids Businesses From Requiring Proof of Vaccination?

Some states, like Florida, Texas, and Tennessee, have passed laws in 2021 forbidding private businesses from requiring proof of vaccination. These businesses will face quiet a dilemma: they could be fined by the federal government if they don’t ask employees for proof of vaccination but they would be fined by the state governments for asking their employees for proof of vaccination. Ultimately, the Supremacy Clause means the federal mandate will override any conflicting state laws, but litigation will be a nightmare for businesses caught in between the political conflict.

Do I Need a Lawyer for Help with OSHA Employment Law?

OSHA rules and regulations can be quite daunting. It may be in your best interests to hire a skilled employment lawyer if you need legal advice or representation. Your attorney can appear for you before an OSAH panel or in a court of law.