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Alexandra Finch, James Hodge and Lawrence Gostin are public health law experts and explain why vaccine mandates from the Biden Administrations will be allowed to pass legal scrutiny. They also discuss why politicizing them is a difficult road ahead.
By Lawrence Gostin and Alexandra Finch.
Two long-awaited Covid-19 vaccine mandates were published by the Biden administration on November 4th. They are for large businesses as well as for Medicare or Medicaid funding health facilities. These mandates only fuelled the unprecedented politicization and spread of the Covid-19 pandemic. There is currently a 12.9 percent difference in vaccination rates among the two sides. Daily news reports have been filled with protests and legal challenges to public health measures. This politicization is best illustrated by the fact that vaccines are now mandated by the federal government and states ban them.
Texas Governor Greg Abbott issued an executive order prohibiting cities and businesses from imposing Covid-19 vaccination mandates. The order of Governor Abbott is directly contrary to President Biden's vaccine mandates. To the dismay of business leaders, Governor Abbott's order is still in effect, despite the Governors pushing for a corollary state legislation.
Governor Abbott is not the only one. 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 passed a law banning discrimination based upon a person's immunization status. It also banned vaccine passports in employment and schools. This is another insult to President Biden's vaccine requirements. The act could be applied to vaccines other than Covid-19. The law may block school enrollment requirements for childhood immunizations, and hospitals could be required to skip annual flu shots.
Officials from the state claim that their anti-vaccination mandates edicts would stymie federal vaccination orders. This includes the Emergency Temporary Standard (OSHA) just released. Businesses with more than 100 employees must ensure that all workers are fully vaccinated. President Biden also requires vaccinations for federal workers, military personnel, contractors and workers in Medicare- and Medicaid-certified facilities. These federal requirements, which are based on the Constitutions Supremacy clause, will supersede state anti-vaccine laws.
The strong legal support President Biden's vaccine mandates has earned him. As Commander in Chief and head federal workforce, the President can set safety standards. The Equal Employment Opportunity Commission, and the Department of Justice both affirm that federal vaccine mandates can be enforced. Strong support is also given to vaccine requirements for health care facilities. The Supreme Court ruled that the government can set reasonable conditions for the receipt of federal funds, on which almost all U.S. healthcare entities depend.
OSHA's employer mandate has already caused a lot of controversy. Many states plan to sue OSHA to stop its implementation. But, President Biden is using his interstate commerce powers to establish uniform workplace safety and hazards standards. This congressional authorization allows him to act at the top of his authority. Given the effectiveness of vaccination and the national emergency support it provides, we are certain that a Covid-19-linked emergency standard will survive.
Tens of millions of Americans are subject to federal mandates. This includes people who are subject to state laws in Texas, Florida and other states. Courts hearing arguments against mandates frequently observe that no one can impose risk on others of contracting serious infectious diseases like Covid-19.
Private employers in multiple states are faced with conflicting regulations. They have to decide what the consequences will be of not complying federal mandates and defying state-imposed prohibitions. American Airlines and Southwest Airlines, both based in Texas, are working to meet the federal deadline to ensure that their employees are vaccinated. Both airlines have granted employees broad exemptions that align with OSHA's rule, provided they submit to weekly testing. A Texas judge has already rejected a Southwest union's request for an injunction to stop the mandate. The broad ban on employers in Montana has been challenged on grounds that it violates the state's constitutional guarantees regarding the right to a healthy and clean environment.
Multiple lawsuits have been filed against Covid-19 vaccine mandates that are imposed by localities and states despite decades-old constitutional, statutory and judicial support for immunizations in other contexts. Judges have upheld the Covid-19 vaccine mandates for health workers, public employees and contractors, as well as students and staff at universities and colleges, with limited exceptions. The Biden Administration was sued by Florida on October 28th, alleging that the federal contractor mandate is in violation of procurement laws. We anticipate that the court will adopt this approach and uphold the mandate.
Even though there is ongoing litigation, vaccine mandates have strong support from science, law, and public health practice. There are many reports about employee dissension, and fallout. Only 5% (1% of all adults) said they quit their job because their employer required vaccinations. In the past, legal challenges to sensible public-health measures have failed. With over 750,000 Americans having been affected by this pandemic, how many lives will be lost while these battles continue?
The Covid-19 pandemic has revealed that there is a need for collective action. This includes individuals, the private sector, and all levels of government to ensure safety and health. Once the legal battles are settled in favor of public safety, law and policy options will be available to safeguard public health for the next century. This can be done through society-wide policies that address health emergencies not affected by political influence.
James G. Hodge, Jr., is the Peter Kiewit foundation Professor of Law, Sandra Day OConnor College of Law, Arizona State University.
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