Early in the pandemic it was hard to imagine we’d have safe and effective vaccines against Covid-19 available in under 9 months. As vaccines progressed through their trials the FDA announced the bar for approval would be 50% effectiveness. Even something less, if that’s all biomedicine could muster, would have helped. After all the previous year’s flu vaccine hadn’t been quite 40% effective.
Now we’re incredibly fortunate to have a shot that is highly protective against both infection and severe disease, though the Pfizer shot does appear to wane in its effectiveness after about six months especially for older recipients (though remains quite effective against bad outcomes). So boosters may be needed, and perhaps initial dosing was spaced too close together.
With widespread community transmission, there are more breakthrough cases even among the vaccinated. It’s not just a personal choice whether to protect oneself, though, because vaccines reduce the chance of infection, and help people clear the virus more quickly when they do get infected. That means those who are vaccinated are less likely to spread to others.
Companies want their employees to be vaccinated,
- It gives other employees confidence to return to office, since they’re less likely to be returning to an indoor environment where spread will be prevalent.
- It reduces the chance that employees will get sick and reduce a company’s productivity – and reduce the chances of a superspreader event that takes out many employees.
Airlines have a real problem when employees call out sick, especially during peak times like holidays. So they want their employees to be vaccinated. United Airlines has been willing to say ‘no vaccine, no work.’ Delta Air Lines first said vaccines would be required for new hires, and then said existing employees who didn’t get vaccinated would face higher insurance co-pays and other measures.
So far American Airlines has stuck to incentives – time off for getting vaccinated and $50 worth of company scrip – but found that many simply wouldn’t do it. Reading employee message boards there’s a lot of vaccine hesitancy, skepticism, and anger.
Now, however, President Biden has declared that everyone in the country he can plausibly pressure into getting vaccinated will need to do so. He clearly has power to impose vaccination on the military, as well as federal employees. The ‘government as employer’ has the power to do things, in most cases, that other employers can do – even if they can’t do so as the government.
Things get more complicated looking at the rest of the President’s orders. Threatening federal funding for health care facilities that don’t impsoe vaccination requirements is tricky. President Trump tried to impose new conditions on federal funding as pressure against sanctuary cities, and the courts didn’t go along. However by addressing funding for individual facilities rather than all of a jurisdiction’s health care budgets the courts may not find this a sufficiently burdensome new condition to be problematic.
The hardest case is mandates on employers with 100 or more employees. The OSHA statute provides for an emergency rulemaking, but courts have always held those to a high standard. And it stretches the statute to require vaccination to address general hazards (non-delegation issues to read authorities so broadly) and viruses aren’t exactly the sort of toxic conditions clearly spelled out in the agency’s authorizing legislation (are viruses ‘substances or agents’?). Stretching the CDC’s authorities didn’t work out at the Supreme Court for the eviction moratorium, though this doesn’t quite stretch the statute as far as the eviction order did.
Is there a ‘grave danger’ and not merely a ‘significant risk’ (when most workers are already vaccinated) and is this rule ‘necessary’ rather than just ‘reasonably necessary’ to justify the emergency rulemaking? The necessary rulemaking has to be to protect workers themselves and not limit broader spread in the community to be legal.
There are certainly going to be legal challenges to the employer mandate, but a lot of employers are just looking for cover to require vaccination.
- They can blame the federal government
- And employees – in a tight labor market – won’t have as many options to go somewhere else, since other large employers will require vaccination too.
We’re already seeing this play out. Here’s the message that American Airlines sent to employees. They aren’t really reserving judgment on what to do pending an actual rulemaking from OSHA, let alone seeing whether the courts uphold or enjoin the regulation. They’re letting employees know to expect to be required to get a jab.
By the way Aemrican’s decision to extend the deadline for employees to take them up on vaccine incentives was made prior to the President’s announcement.
In a sense this is what the Biden administration is looking for. It may not even matter whether an OSHA rulemaking is legal or not. A lot of employers will impose vaccination requirements, and that will drive up vaccination rates (even if some employees leave their jobs, for other employers or to wait out the pandemic). The federal government clearly lacks the authority to require everyone to get vaccinated, even if the states do – don’t cite Jacobson v. Massachusetts, 197 U.S. 11 (1905), that’s about a state’s general police powers which the federal government lacks.
The administration’s goals are for more vaccination, and that may happen even if some elements of their plan are ultimately overturned later. Although there are real worries that mandate, rather than framing vaccines as a way back to normal life, may backfire with anti-vaxxers digging in see ‘proof’ that vaccines and masks are ‘about social control.’
This isn’t really a world I’m comfortable in, where the Executive writes it’s own powers without the legislature’s involvement even. That’s true regardless of which party is in power. But it’s the direction we’ve been heading in for some time, really accelerated during the Bush administration after 9/11.