In September, President Biden announced a number of workplace COVID-19 vaccination mandates in a far-reaching attempt to force the hand of the 20 percent of the country that’s still unvaccinated. The proposed mandates would cover about two-thirds of our workforce — that is, if they hold up legally. The Occupational Safety and Health Administration has released its official guidelines, and a panel of the court has already put a temporary block on the new mandates, which means a lot is still up in the air, including whether this will actually result in more people getting the vaccine. Unsurprisingly, the response has been mixed, with some business owners thankful they can finally enforce rules with some protection against employee pushback and others concerned about what this means for workers’ rights or company expenses. To learn more about what we can expect next, the Cut spoke with a few legal and labor experts. Here’s what we know so far.
Who will be required to get vaccinated?
At this point, Biden’s plan would cover 100 million Americans, many of whom will either need to get vaccinated or submit to weekly testing. His plan outlines mandates for three categories of workers: federal government employees (including contractors who work with the federal government), staff at health-care facilities receiving federal funding through Medicare and Medicaid, and — the category that has been receiving the most attention — all businesses with over 100 employees. Starting November 23, all government employees must be vaccinated, while federal contractors, health-care facilities, and businesses with 100 or more employees will need to make sure all employees are vaccinated by January 4. Large-business employees will also have the option of once-a-week COVID tests if they refuse to get vaccinated.
Many workplaces are already requiring their employees to get vaccinated, but so far they’ve been acting of their own accord. The hope with this plan is that businesses that were hesitant to impose mandates or worried about employee pushback will now be able to enforce those requirements. The other goal is that businesses in states with anti-vaccine legislation can impose vaccine mandates without facing legal repercussions on the state level. The ruling will also include a requirement that employers give their workers paid time off to get vaccinated.
How are the guidelines being enforced?
Per OSHA’s guidelines, you need two doses of the Pfizer or Moderna vaccine, one dose of the Johnson & Johnson vaccine, or any other COVID-19 vaccine approved for emergency use by the WHO to be considered vaccinated. Proof of vaccination can be requested through vaccine cards or a signed note pledging that you have been vaccinated (it’s unclear who needs to sign the note). OSHA’s penalty strategy remains to be seen, but the most likely outcome is that companies who fail to comply will be fined. The administration’s typical fine for a onetime offense is $13,653.
The new rulings don’t require businesses to pay for or provide COVID tests, though some of their unions might demand it. Employers will also be required to submit data on their employees’ vaccine statuses to either employees themselves or their unions.
Will the mandates be challenged in court?
Biden’s proposal to mandate vaccinations for government workers and at federally funded health-care facilities seems to be pretty safe from legal challenges. According to Dorit Reiss, a professor at UC Hastings who researches vaccine policy, the federal government is well within its bounds to set workplace standards for its own employees. And since health-care facilities agree to abide by certain federal rules when they secure Medicare and Medicaid funding, that mandate also seems legally sound.
The “vaccine or test” mandate for private businesses is more vulnerable to legal challenges. Mark Barnes, a health-care attorney who worked with New York health departments during the AIDS crisis, says that “there is the possibility of a serious challenge here.” Arizona’s attorney general filed a lawsuit before the OSHA guidelines have even been released, and once the official January 4 deadline was set, at least three lawsuits, including from attorneys general in multiple states, were submitted challenging the mandates. One petition from a collection of businesses, states, and religious groups has already caused the U.S. Court of Appeals for the Fifth Circuit to put a temporary block on the mandates for businesses with more than 100 employees, writing that there are “grave statutory and constitutional issues” with them.
A host of Republican leaders has sworn to fight the mandates, meaning there are likely many more challenges in the wings. Reiss expects more challenges to come from individual workers as well as private employers.
According to Barnes, there are a few legal holes in Biden’s proposal that make it liable to being shot down. There’s a decent chance courts will decide that mandating vaccines in the workplace is an overreach of OSHA’s power — mainly because COVID-19 exposure isn’t a hazard specific to the workplace (though any workers’-rights advocate will tell you that COVID-19 protections in the workplace are paramount to worker safety). These mandates aren’t specific to overly crowded workplaces or even in-person offices, potentially allowing challengers to argue that the government is enforcing hazard precautions in workplaces where the hazards don’t exist.
The other legal concern is that public-health policy generally tends to happen at the state or local level. Throughout the pandemic, many variations in masking and social-distancing laws have emerged, all put in place by governors and district officials who have something called “police power” — a state’s constitutional capacity to regulate the behavior of its inhabitants. A state like Montana, which currently has a law banning company vaccine mandates, could argue that a federal vaccine mandate will interfere with its own ability to monitor public health.
When will the vaccine mandates go into effect?
In a press conference on November 7, surgeon general Dr. Vivek Murthy said that the Biden administration is prepared to defend the mandates against mounting legal challenges. The current block won’t necessarily affect the dates these mandates kick in if it’s lifted before December 5, the first major deadline in the large-business section of the mandates. (This is the date by which companies have to require unvaccinated employees to wear masks indoors.)
Any federal district court handling these legal challenges can put a similar stay on the mandates, meaning certain provisions wouldn’t be in effect until they make a decision. Stays can be all-encompassing, like the one issued this weekend, but they also might only apply to certain groups without putting the whole plan on hold. Even if the mandates are ultimately shot down or revised, they still could help bump up vaccination rates while district courts deliberate.
Will vaccine mandates make the workplace safer?
As of November, 31 million of the 84 million workers covered by the large-business mandate are still unvaccinated. Obviously, the more shots we have in people’s arms, the safer workplaces will become. “Workers have a right to be protected from exposure to any kind of hazard in the workplace,” says Laura Stock, the director of UC Berkeley’s Labor Occupational Health Program. COVID is clearly one of those hazards, and “vaccines are an important part of the strategy for preventing COVID exposure,” says Stock. A number of states are mandating vaccines for health-care workers and public-school employees, including New York, where the numbers so far are promising: Ahead of the health-care deadline, at least 3,000 public hospital workers who’d previously been unvaccinated got the shot, and the deadline for public schools yielded similar results: 95 percent of full-time school employees had gotten at least one dose as of the first week of October.
While requiring vaccination is a promising step toward protecting workers, most labor groups aren’t totally satisfied with OSHA’s — and, more generally, the federal government’s — response to COVID-19 outbreaks in the workplace. “Vaccines are part of what should be a multilayered strategy,” says Stock. She says Biden’s provision that businesses allow paid time off for their employees to get the vaccine and ride out its side effects is a good start.
Other pieces of the COVID-19 workplace-safety puzzle include things like masking, social distancing, ensuring proper ventilation, and rotating shifts to help minimize the spread — none of which are included in Biden’s plan. Jessica Martinez, the co-director of the National Council on Occupational Safety and Health, also says her group is concerned about protecting workers against illegal retaliation if they raise concerns about the safety of their workplace or report that they’ve been exposed to COVID-19.
Will there be mass layoffs?
Assuming the mandate does go into effect, the government has yet to specify how it will be enforced. The most likely scenario is not that unvaccinated employees will immediately be fired. We’re already in the middle of a labor shortage, and dismissing such a large chunk of the workforce would bring a lot of workplaces to a grinding halt. Instead, the process will probably resemble guidance the Biden administration has already issued for federal agencies: Start by providing more information about the vaccine and how to get one, and from there follow the disciplinary process laid out in employees’ bargaining agreements — which usually includes warnings, letters of reprimand, and suspensions before an employee can be fired. No guidance has been provided yet for workplaces that aren’t unionized.
The workforce is already shifting in response to mandates, with many employees resigning in protest from businesses introducing a vaccine requirement. A survey from June found that half of all unvaccinated workers interviewed said they would leave their job if they were asked to get vaccinated to continue working.
Even without the mandate, employers are within their rights to fire someone for not getting vaccinated, as long as they’re making religious and medical exemptions. According to the Equal Employment Opportunity Commission, being vaccinated for COVID can be considered a condition of employment — meaning employers don’t have to offer the weekly testing option if they don’t want to.
This post has been updated.