September 13, 2021

Will Biden's vaccine requirements survive in court? Here's what legal experts think.

Daily Briefing

    President Biden last week announced new rules requiring most federal workers, health care workers, and some private sector employees to get vaccinated against Covid-19—actions that drew mixed responses from businesses but are supported by many health experts.

    Should you mandate a Covid-19 vaccine for your staff? Ask these 5 questions first.

    Background

    In the announcement, Biden said private-sector employers with at least 100 employees will have to either require vaccinations or weekly testing under a rule that will be drafted by the Occupational Safety and Health Administration (OSHA). Employers that violate the rule will be penalized $14,000 per violation, according to an administration official.

    In addition, most hospitals and other health care facilities that accept reimbursement from Medicare and Medicaid will be required to vaccinate their workers, a requirement that will be enforced by CMS, Biden said.

    Nearly 300,000 educators who are part of the Head Start Program and at more than 200 federally run schools will also be required to be vaccinated, Biden also announced, as will the majority of federal workers and contractors.

    According to a senior administration official, "the new vaccination requirements in the president's plan cover about 100 million workers. That's two-thirds of all workers in the United States."

    What new CDC studies show about vaccine effectiveness

    The case for the vaccines' effectiveness, even amid the spread of the highly contagious delta variant, was bolstered late last week by studies released by CDC.

    One study looked at more than 600,000 coronavirus infections in 13 states between April and July. It found that unvaccinated people were 4.5 times as likely to get infected with the coronavirus, 10 times as likely to be hospitalized with Covid-19, and 11 times as likely to die from Covid-19.

    Another study looked at 32,867 patient visits in nine states. It found that Covid-19 vaccines were overall 86% effective at preventing hospitalizations. However, the vaccines' protection against infection has waned slightly in recent months, dropping from 91% effectiveness before the spread of the delta variant to 78% after the variant became prominent.

    A third study—conducted at five Veterans Affairs medical centers—found that vaccine protection declined slightly with age. The vaccines were 95% effective at preventing hospitalization among adults 18 to 64 but 80% effective among adults 65 and older.

    New vaccine rules draw mixed reactions from businesses

    Some major businesses have expressed their support for Biden's vaccine rules, with the Business Roundtable on Thursday saying it "welcomes the Biden administration's continued vigilance in the fight against Covid."

    The AFL-CIO also expressed support for the rules, with Liz Shuler, AFL-CIO's president, saying the recent Covid-19 surge "requires swift and immediate action."

    However, other businesses have expressed concerns. Geoff Freeman, president of the Consumer Brands Association, said the association wants more clarity on what's required.

    "As with other mandates, the devil is in the details," Freeman said. "Without additional clarification for the business community, employee anxieties and questions will multiply."

    Jay Timmons, president of the National Association of Manufacturers, said he shared Biden's goal of getting Americans vaccinated but was concerned about how much the rules could cost to implement.

    "We look forward to working with the administration to ensure any vaccine requirements are structured in a way that does not negatively impact the operations of manufacturers that have been leading through the pandemic to keep Americans safe," Timmons said in a statement. "It is important that undue compliance costs do not burden manufacturers, large and small alike."

    How legal experts think the mandates will fare in court

    Experts say Biden's mandates are likely going to be taken to court.

    In response to the mandates, Georgia Gov. Brian Kemp (R) said he "will pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach by the Biden administration."

    Arkansas Gov. Asa Hutchinson (R) said vaccine mandates "have always come at the state level, never at the national level," adding the mandates are "an unprecedented assumption of federal mandate authority."

    However, some legal experts say they expect Biden's mandates will hold up in court.

    "My bet is that with respect to that statutory authority, they're on pretty strong footing given the evidence strongly suggesting … the degree of risk that [unvaccinated individuals] pose, not only to themselves but also unto others," Sachin Pandya, a law professor at the University of Connecticut, said.

    According to Lindsay Wiley, director of the Health Law and Policy Program at American University Washington College of Law, vaccine mandates as a condition of employment have held up in court in the past.

    "The argument that mandatory vaccination impermissibly infringes on bodily autonomy or medical decision making, those arguments have not been successful and I don't expect that to change," Wiley said. "I think the challenges that are harder to predict the outcome of are going to be the ones that are really sort of the boring challenges about whether they followed the right process."

    However, Michael Harper, a law professor at Boston University, said vaccination "has become politicized and there are many Republican district judges who might be hostile to the regulation for political reasons."

    "I could imagine an unfortunate opinion that attempted to justify this political stance by rejecting the use of OSHA against infectious disease rather than against hazards intrinsic to the workplace," he added.

    Meanwhile, Surgeon General Vivek Murthy said the mandates are "part of a long tradition that we have in this country" and added that they are "an appropriate legal measure."

    "In the face of delta, we've got to move to the next phase of that response, and that involves focusing not just on expanding the vaccination efforts through a combination of mandates and access, but it also involves focusing on increasing our testing capacity," Murthy said. (Epstein/Lerer, New York Times, 9/10; Mandavilli/Rabin, New York Times, 9/10; Evers-Hillstrom, The Hill, 9/10; Cutter/Weber, Wall Street Journal, 9/10; Davidson, USA Today, 9/12; AP/Modern Healthcare, 9/13; Stolberg, New York Times, 9/12; Reyes, Axios, 9/12; Broad, New York Times, 9/12; Cohen, Politico, 9/12)

    Should you mandate a Covid-19 vaccine for your staff?

    Ask these 5 questions first.

    clash

    Across the country, health care employers are facing a pressing question: How do you increase the number of staff vaccinated against Covid-19? Advisory Board's Miriam Sznycer-Taub, Lauren Woodrow, and Heather Bell spoke with Kimberly Daniel, partner at the health care law firm Hancock, Daniel & Johnson, P.C about the implications of mandating Covid-19 vaccines for your employees.

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