WASHINGTON — Nearly nine months after the first COVID-19 vaccine was approved for emergency use, President Biden announced that tens millions of American workers will now be asked to choose between getting the jab, facing weekly testing or possibly losing a job.
Nearly 80 million eligible Americans, or 25% of the population, have refused to get one, Biden said in a press conference Thursday. Meanwhile, he said, the unvaccinated “overcrowd our hospitals, are overrunning the emergency rooms and intensive care units.”
During the briefing President Biden said that under a new Department of Labor rule, all employers with 100 or more employees must require workers to be fully vaccinated or face weekly COVID-19 testing. These employers must also give their employees paid time off to get vaccinated, according to the new rule developed by the Occupational Safety and Health Administration (OSHA).
The President also announced an executive order requiring all federal employees and federal contractors to be vaccinated against the virus.
This latest announcement replaces Biden’s previous call in late July which allowed unvaccinated federal employees and onsite contractors to wear a mask, socially distance, comply with 1-2 COVID tests weekly and be “subject to restrictions on official travel.”
The announcement has been controversial, confusing and politically polarizing online, with some people wondering if he can do that at all.
Verify researchers are breaking that question in two—one for federal workers, and one for private companies.
Can the federal government require COVID vaccinations for federal employees and contractors?
- Lawrence Gostin, Professor of Global Health Law at Georgetown University Law Center
- Stephanie Rapp-Tully, Federal Employment Lawyer and Partner at Tully Rinckey PLLC
- Department of Justice opinion: “Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an Emergency Use Authorization”
- U.S. Equal Employment Opportunity Commission: “EEOC Issues Updated COVID-19 Technical Assistance”
WHAT WE FOUND
Both Lawrence Gostin and Stephanie Rapp-Tully agreed that, generally speaking, the government can require its workforce to get the COVID-19 vaccine.
“The president has clear power to ensure a safe federal workforce,” Gostin said. “The Equal Employment Opportunity Commission and the Department of Justice have both said that it’s lawful to do it, and there are federal courts that have upheld other workforce mandates.”
Gostin said the same goes for federal contractors.
“And then the contractor has a choice: he or she can either decide to get their employees vaccinated, or don’t take federal dollars,” he said.
Rapp-Tully explained that rules like these must include exceptions for those with medical or sincerely held religious objections.
“If an employee has a disability that would prevent them from being vaccinated, [and a] doctor says that, for whatever reason, medically they cannot get the vaccination, presenting that information to the agency would allow them to be offered a reasonable accommodation,” Rapp-Tully said. “At this point, reasonable accommodations are looking a lot like telework.”
Another caveat—unions. The federal government would have to negotiate an agreement with unions in order to avoid litigation, Rapp-Tully explained.
In fact, the largest federal union, American Federation of Government Employees (AFGE), released a statement Thursday saying that while they encourage their members to get vaccinated, “workers deserve a voice in their working conditions.”
“We expect to bargain over this change prior to implementation, and we urge everyone who is able to get vaccinated as soon as they can do so,” the statement reads.
So we can verify, yes, in general, it’s legal for the President to mandate that federal employees get the vaccine.