By Christopher T. Vrountas, Esq. and Allison C. Ayer, Esq.
In recent months, the Federal government has taken steps to try to increase the percentage of people fully vaccinated in the United States. This summer, the President signed an Executive Order requiring all federal executive branch workers to be vaccinated. He also directed that this standard be extended to employees of contractors that do business with the federal government. During the Fall, the President also ordered large employers (those with 100 or more employees) to vaccinate their workforce or produce a negative test result on at least a weekly basis before coming to work. The COVID Plan can be found here. The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing more information expected out shortly to explain exactly to whom and how the rule applies, and answering questions including how individuals will be counted for purposes of the 100-employee threshold. In the meantime, these executive actions have prompted many people to ask if vaccination requirements pass Constitutional muster? The short answer is Yes.
GOVERNMENT CAN IMPOSE PUBLIC HEALTH MANDATES.
As an initial matter, government generally can require vaccines. Bottom line, an individual’s freedom cannot be absolute in a democratic society and the state has the power to issue impositions “as the safety of the general public may demand.” Jacobson v. Massachusetts, 197 U.S. 11 (1905). That includes vaccine mandates. Of course, the state’s power is limited by what is truly necessary and any legal imposition must pass a balancing test that weighs the individual’s liberty interest on the one hand against the exigencies of public health on the other. That said, established precedent provides that the state may in the context of a public health emergency require vaccinations to combat the spread of disease.
Given the anticipated limited scope of the proposed mandate, it would likely fall within the federal government’s delegated authority in the Commerce Clause to regulate interstate commerce (See Gonzales v. Raich, 545 U.S. 1 (2005) (upholding federal regulation of intrastate cultivation of marijuana because it was part of a comprehensive federal program to combat interstate traffic in illicit drugs). or the Spending Clause, so long as the conditions Congress seeks to impose are related to the spending program at issue and not “unduly coercive”. See South Dakota v. Dole, 483 U.S. 203 (1987) (upholding federal law withholding 5% of federal highway funds otherwise allocable to states that do not raise the drinking age to 21).
The testing and vaccination opt-out mandate could be lawfully implemented through use of its regulatory power. More than most people realize, much of the rule making that must be done to implement the various statutory schemes enacted by Congress has been delegated by Congress to the various administrative agencies within the Executive branch. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
The Occupational Safety and Health Act (“OSHA”) in particular empowers the Secretary of Labor to “by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard” and that “[i]n the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.” OSH Act, Section 6(a). If the Administration conducts the full rule making process, complete with research, notice and public comment, then its proposed testing and vaccination opt-out mandate would likely gain the force of law in the form of a Regulation.
The Administration may also choose to implement its proposed testing and vaccine opt-out mandate through executive agency Guidance. The Department Of Labor’s interpretation of its own existing Regulations enjoys a substantial level of deference from the federal courts. As a general rule, an agency’s interpretation of its own ambiguous regulation is controlling unless “plainly erroneous or inconsistent with the regulation.” Cope v. Let’s Eat Out, 354 F. Supp. 3d 976, 986, (2019). If the Guidance is hastily developed or if it is inconsistent with prior guidance or rules, then it may not gain the benefit of judicial deference. If, however, the Guidance is supported by record evidence, logical reasoning, and fair notice, and is shown to be necessary in the context of a spreading pandemic, and is shown to be consistent with prior guidance and rules, then the federal courts will likely grant deference to the DOL’s new Guidance.
SO, NOW WHAT? It remains to be seen whether and how Biden’s vaccination requirements will be enforceable. Much will depend on what it says and how it is promulgated. Ultimately the Administration will need to resort to the federal courts to enforce its testing/vaccination policy, and we simply do not know for sure how that fight will play out.
Notably, even those who argue vehemently against the mandate may nevertheless be pro-vaccine. While many employers are not currently required to impose a vaccine requirement, they clearly are permitted to do so under federal law so long as they carve out exceptions for religious and medical exceptions. Agencies including the EEOC, OSHA and the CDC have provided substantial guidance on how to administer a vaccine requirement while respecting the civil rights of employees under Title VII and the ADA.
In addition, plaintiff lawyers may argue that the failure of a business to impose reasonable vaccine mandates could amount to a failure to meet the duty of care to customers and the public. Such a failure could lead to liability for negligence and damage awards in the event causation of harm can be proven.
In sum, there are many reasons to encourage vaccination amongst employees, regardless of how the Biden “mandate” fares. Employers concerned about the health and safety of their employees and their customers should pay close attention to the guidance offered by the CDC, OSHA, EEOC, and state public health agencies, and seek legal advice as appropriate to develop their own vaccine policies that will pass muster under the developing law.
Vrountas, Ayer & Chandler, P.C.
250 Commercial Street, Suite 4004