Q&A on Biden’s COVID-19 Vaccine-or-Test Rule

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By Eugene Kiely and Lori Robertson

On Sept. 9, President Joe Biden announced a six-point plan to increase vaccinations against COVID-19 and slow the spread of the delta variant of the virus that has resulted in increasing COVID-19 cases and deaths.

The most controversial part of the plan is Biden’s directive to the Labor Department to develop a temporary emergency rule for businesses with 100 or more employees that would require workers to be fully vaccinated or be tested at least once a week.

Republican governors have threatened to sue the administration to stop implementation of the plan.

Here we answer some questions about Biden’s plan — which is still being developed, so many questions remain unanswered.

Who is affected by Biden’s plan?

The rule will apply to businesses that have 100 or more employees. An administration official told us that includes businesses that have fewer than 100 employees at one location, but have a total of 100 or more in all of their locations. The administration estimates that more than 80 million private-sector employees will be affected by the rule.

An unknown number of those workers are already fully vaccinated. More than 177 million Americans 12 years of age and older have been fully vaccinated, and the administration estimates 80 million who are eligible for the shots remain unvaccinated.

When we asked if the requirement would be imposed on independently operated franchises, the administration official deferred to the rule-making process.

If an employee refuses to be vaccinated, who pays for the at least weekly COVID-19 tests?

At a Sept. 10 briefing, White House Press Secretary Jen Psaki said it would be up to the business whether to cover the cost of testing or require their employees to pay for it. “But I would bet that most would believe the businesses that pay for that,” she said.

That detail, too, will be part of the rule-making process.

Under what authority can the administration impose a vaccine-or-test mandate on private businesses?

The White House believes Biden has the authority under the Occupational Safety and Health Act of 1970.

“This is a way to implement the OSHA regulations that, by the way, are a part of what has been federal law for more than 50 years,” Psaki said at the briefing. “That’s why we have the capacity and the ability to do this.”

The Occupational Safety and Health Act says the secretary of labor can issue “an emergency temporary standard,” or ETS, if “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and “that such emergency standard is necessary to protect employees from such danger.”

Under the Biden administration, the Occupational Safety and Health Administration in the Labor Department issued an emergency temporary standard in June to protect health care workers most likely to have contact with patients who had COVID-19. That standard included requirements for employers such as developing written plans to limit the spread of the virus, providing personal protective equipment and providing paid time off for workers to get vaccinated.

But it did not require health care workers in the private sector to be vaccinated.

Is a vaccine-or-test mandate legal?

Some experts have said the vaccine requirement is legal under the Occupational Safety and Health Act. But as we noted, Republicans have said they will mount legal challenges, and the act hasn’t been used to implement vaccine requirements before.

“I think it’s a legitimate emergency standard in response to a legitimate emergency,” Robert I. Field, a professor of law and health management and policy at Drexel University, told us.

Field said he did not believe there had been a legal test of a requirement like this before. But, he said, it was “within OSHA’s power.”

This new emergency standard for all employers with more than 100 employees is “more intrusive” than the one issued in June for the health care sector, Field said. “But given the effects of the delta variant and the lack of other tools available to stop the national spread,” as well as the risk to many workers, “I think OSHA has ample justification … for issuing the vaccine mandate,” he said.

“This is a national emergency that in one way or another affects everyone,” he said.

Wendy K. Mariner, professor emerita of health law, ethics and human rights at the Boston University School of Public Health, told us in an email that [e]mployers have a duty of care to maintain a safe and healthy workplace” under the OSH Act. “Given how easily SARS-CoV-2 is transmitted, especially by asymptomatic people, it is quite justifiable for OSHA to require that covered employers mandate vaccination (or testing/masking for those with contraindications to the vaccine; and accommodations for those with disabilities under the ADA) to protect all employees, as well as customers, clients, and patients. It need not apply to those who do not enter the workplace.”

Mariner said that she wasn’t aware of any prior OSHA standard on requiring vaccines, but noted that “it has issued non-binding guidance encouraging covered employers to facilitate employees getting vaccinated and other prevention measures.”

How will the rule be enforced?

An administration official declined to answer our question, deferring to the rule-making process. An OSHA spokesperson provided us with a prepared statement that did not answer our question, either.

However, Psaki said fines for OSHA violations are up to “$13,600 per violation, but this is all a part of what would be determined in the coming weeks.”

When will the rule take effect?

The Occupational Safety and Health Act of 1970 says an emergency temporary standard takes “immediate effect upon publication in the Federal Register.” But it is not clear how long it will take for OSHA to publish a rule. At the press briefing, Psaki indicated the rule-making process would take “weeks.”

It took OSHA six months to publish the ETS for the health care sector. That rule, which Biden directed the labor secretary to write in a Jan. 21 executive order, was published June 21.

Will the administration offer financial incentives for states to mandate vaccines at the state level?

The federal government cannot direct states to issue vaccine mandates, but it could provide financial incentives for states to do so.

“[T]he Supreme Court has interpreted the Tenth Amendment to prevent the federal government from commandeering or requiring state officers to carry out federal directives,” the Congressional Research Service explained in a 2019 report. “In the context of vaccination, this principle prevents Congress from requiring states or localities to pass mandatory vaccination laws, but it does not impede Congress from using its Spending Clause authority to provide incentives (in the form of federal grants) to states to enact laws concerning vaccination.”

At the Sept. 10 briefing, Psaki declined to answer if the Biden administration is considering providing incentives for states to mandate vaccinations. “I don’t have anything else to preview or predict for you in terms of additional next steps,” she said.

She did, however, acknowledge that the federal government doesn’t “have the ability to tell every American you have to be vaccinated,” adding “there’s a means of encouraging it“ and that’s what the vaccine-or-test rule would do.

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