Public health law experts Lawrence Gostin, Alexandra Finch and James Hodge explain why the Biden Administration’s vaccine mandates will survive legal scrutiny – and why their politicization makes for a rocky road ahead.
by Lawrence Gostin, Alexandra Finch and James Hodge
On November 4th, the Biden administration published two long anticipated Covid-19 vaccine mandates, for large businesses and for health facilities in receipt of Medicaid or Medicare funding. These mandates have only added fuel to the unprecedented politicization of the Covid-19 pandemic, which is now seeing a 12.9 percentage point difference in vaccination rates between the two parties. Protests and legal challenges against public health measures have consumed daily news reports. But there is no clearer illustration of this politicization than seeing the federal government mandate vaccines while states outright ban them.
Texas Governor Greg Abbott previously issued an executive order banning businesses and cities from imposing Covid-19 vaccine mandates. Governor Abbott’s order is in direct contradiction to President Biden’s vaccine mandates. And while the Governor’s push for a corollary state law fell flat, the order remains in place, to the chagrin of business leaders.
Governor Abbott isn’t alone. At least 7 other Republican-controlled states (AR, GA, IN, MI, MT, TN, UT) banned Covid-19 vaccine mandates for state employees and school staff. Montana enacted a law prohibiting any “discrimination” based on a person’s immunization status and banning vaccine passports, including in employment, schools and health care settings—another slap-in-the-face to President Biden’s vaccine requirements. Applications of the act may extend beyond Covid-19 vaccines. For example, the law could block childhood immunization requirements for school enrollment and hospitals may have to forego annual flu shot requirements.
State officials suggest their anti-vaccination mandates edicts will stymie federal vaccine orders, including the new Emergency Temporary Standard just issued by the Occupational Safety and Health Administration (OSHA). Beginning January 4th, businesses with 100 or more employees must have all their onsite workers either fully vaccinated or subjected to weekly testing. President Biden has also required vaccinations for the military, federal workers, and contractors, and among workers in Medicare and Medicaid-certified facilities. State anti-vaccine laws will be superseded by these federal requirements under the Constitution’s Supremacy Clause.
President Biden’s vaccine mandates have strong legal support. The President can unquestionably set safety standards as the Commander in Chief and head of the federal workforce. Both the Equal Employment Opportunity Commission and the Department of Justice have said federal vaccine mandates are lawful. Vaccine requirements concerning health care facilities have strong support too. The Supreme Court has ruled that government can set reasonable conditions on the receipt of federal funds on which virtually all U.S. health care entities rely.
OSHA’s employer mandate is already generating considerable controversy. Multiple states are poised to sue to prevent its implementation. Yet, President Biden is acting at the height of his authority through specific congressional authorization grounded in interstate commerce powers to set uniform national workplace safety and hazard standards. We are confident that an emergency standard linked to Covid-19 will survive given the effectiveness of vaccination, the gravity of the threat and national emergencies supporting it.
“But with over 750,000 Americans lost to this pandemic to date, how many more lives must be risked while these battles play out?”
Tens of millions of Americans fall under the federal mandates, including persons subject to contrary state rules in Texas, Florida, and other states. As courts weighing arguments against mandates regularly observe, no one has the right to a impose risks on others of contracting a serious infectious disease like Covid-19.
Conflicting rules find private employers in multiple states scrambling to make sense of the consequences of complying with federal mandates in defiance of state-imposed prohibitions. Texas-based Southwest and American Airlines are taking steps to meet the federal deadline for their staff to be vaccinated despite the Texas order. However, both airlines are extending employees broad exemptions, which align with OSHA’s rule provided such employees submit to weekly testing. A Texas judge already dismissed a request by a union representing Southwest for an injunction against the mandate. Montana’s broad employer mandate ban has been challenged on grounds it violates the state’s constitutional guarantees of the right to “a clean and healthful environment.”
Conversely, multiple lawsuits have been filed objecting to Covid-19 vaccine mandates imposed by states and localities despite decades of constitutional, statutory, and judicial support for immunization requirements in other contexts. With limited exceptions, including a New York decision objecting to a failure to allow a religious exemption, judges have overwhelmingly upheld Covid-19 vaccine mandates applicable to health workers, public employees, contractors and university students and personnel. On October 28, Florida sued the Biden Administration alleging the federal contractor mandate violates procurement laws. We expect the court will follow this pattern and uphold the mandate.
Despite current and pending litigation, vaccine mandates are strongly supported by law, public health practice and science. Widespread reports of employee dissension and fallout are overstated; only 5% of unvaccinated adults (1% of all adults) say they left a job because their employer mandated vaccination. Legal challenges to sensible public health measures have historically failed. But with over 750,000 Americans lost to this pandemic to date, how many more lives must be risked while these battles play out?
One of the emerging findings of the Covid-19 pandemic is the need for collective action, involving individuals, the private sector and all levels and branches of government, to guarantee health and safety. Once the legal battles play out in favor of public health – and they will – law and policy options must be wielded to protect public health for the century ahead through society-wide policies addressing health emergencies disassociated from political influences.
James G. Hodge, Jr. is the Peter Kiewit Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.