Biden Announces Executive Action to Mandate COVID-19 Vaccines for Private Employers With 100 Workers

What’s the story?

• President Joe Biden on Thursday announced that he will be signing a number of COVID-19 related executive orders in the near future, including a mandate for private sector employers with more than 100 workers to mandate vaccination or participation in weekly testing. Biden said his actions are intended “to protect vaccinated workers from unvaccinated co-workers” and asked unvaccinated Americans:

“What more do you need to see? We’ve made vaccinations free, safe, and convenient. The vaccine has FDA approval. Over 200 million Americans have gotten at least one shot. We’ve been patient, but our patience is wearing thin. And your refusal has cost all of us. So, please, do the right thing.”

• The announcement comes as a reversal of Biden’s past opposition to a federal vaccine mandate. On December 4, 2020, Biden was asked if he thought the COVID vaccine should be mandatory and replied, “No, I don’t think it should be mandatory.” In late July 2021, White House Press Secretary Jen Psaki was asked if a federal vaccine mandate was necessary and responded “that’s not the role of the federal government: that is the role that institutions, private-sector entities, and others may take.”
• The Biden administration’s mandate would require private employers with at least 100 workers to require vaccination or show a negative test once a week, in addition to giving employees paid time off to get vaccinated. Violators would be fined up to $14,000 for each violation. The rule is being drafted by Occupational Safety and Health Administration (OSHA) and is expected to be finalized in the near future. 
• OSHA will issue the rule as an Emergency Temporary Standard (ETS), which is a rarely used process that allows OSHA to implement a rule immediately for up to six months without undertaking the standard rulemaking process with opportunities for public comment. ETS are subject to judicial review if a legal challenge is brought against the rule. 
• The Congressional Research Service (CRS) notes that there have been 10 ETS put forward by OSHA since 1971. Only three ETS weren’t challenged legally (ETS related to asbestos in 1971, vinyl chloride in 1974, and DBCP in 1977), while another one put forward in June by the Biden administration related to COVID-19 is currently undergoing judicial review.
• Of the six ETS that have been challenged and courts rendered a decision on, four were vacated or stayed by the court, one was partially upheld and partially vacated, and the request for a stay was denied in one case to uphold the ETS for vinyl cyanide in 1978.
• Numerous Republican governors from states across the country have signaled they intend to file suit to challenge the Biden administration, as has the Republican National Committee. Sen. Ben Sasse (R-NE) released a statement which blasted Biden’s “constitutionally dubious executive orders” and added:

"President Biden is so desperate to distract from his shameful, incompetent Afghanistan exit that he is saying crazy things and pushing constitutionally flawed executive orders. This is a cynical attempt to pick a fight and distract from the President's morally disgraceful decision to leave Americans behind Taliban lines on the 20th anniversary of 9/11. This isn't how you beat COVID, but it is how you run a distraction campaign -- it's gross and the American people shouldn’t fall for it.”

— Eric Revell

(Photo Credit: White House photo by Adam Schultz via Flickr / Public Domain)