The Precedence of Vaccine Mandates and Recent Reactions
COVID-19 vaccines have been available since December 2020, but many in the United States have yet to receive one. As the Delta variant spreads across the country, President Biden has introduced new mandates in federal and private spheres requiring vaccination. The guidance has sparked mixed reactions, with many questioning the efficacy and safety as others praise the move as a necessary step to protect from the virus. The move is not unprecedented, but neither is the backlash. Despite precedent, the implementation of vaccine mandates is impacted by arguments on legality and widespread discontent in what is seen as a violation of personal freedom.
On September 9, 2021, President Biden issued an executive order mandating vaccination of all federal employees against COVID-19. In the order, he addressed the spread of the highly contagious Delta variant and the FDA approval of the Pfizer-BioNTech vaccine. Under this order, individual federal agencies must ensure that all employees are vaccinated whether they work in person or not. Vaccines are also required for medical workers in settings that participate in Medicare or Medicaid, particularly nursing homes and hospitals. The second guidance, issued through the Occupational Safety and Health Agency (OSHA), requires all businesses with over 100 employees to mandate vaccination through an Emergency Temporary Standard. According to data from the Census Bureau, the total number of US businesses with more than 100 employees is around 2%.
Reviving the economy in the wake of the widespread shutdowns has been a priority for the Biden administration, with President Biden commenting that saving lives leads to a better economy. Around 200,000 businesses were forced to close throughout the pandemic that would have remained open otherwise. Now, as businesses began to reopen to larger numbers of people, there are three main concerns that necessitate the COVID vaccine: employee attendance, customer engagement, and supply-chain management. The core of any business is the people who work there; without enough employees, a business will not be able to run.
The point of the vaccine is to prevent COVID-19, and healthy employees will be able to work and ensure a business can stay open. The next important part of a thriving business is the customers. In the same vein as employee attendance, healthy customers will be the ones engaging with businesses and ensuring their monetary ability to remain open. Workers and customers with COVID-19 (or those in quarantine) will not be active in the economy, as we saw during the lockdowns last year. Finally, there is the issue of supply-chain management. Before the emergence of the vaccine, many places imposed lockdowns to slow the spread of COVID-19. This had drastic consequences for the availability of supplies for many businesses, causing many of them to run out of goods or close. Vaccines would protect supply-chain workers and enable a smoother system of delivery, facilitating economic recovery. The federal vaccine mandates hope to keep businesses open and operating in tandem with this re-emerging economy.
The orders also join many similar efforts from private corporations, the most notable being the mandates from Google and Facebook earlier this year. Many other companies have followed suit in the intervening months. Private mandates are different from their federal counterparts. Private businesses can require their employees to receive the vaccine as a “condition of employment,” meaning that those who do not wish to receive the vaccine may be asked to leave or terminated. Private mandates, however, are a more recent event than those at the state and federal levels. Several executives from companies like Microsoft and Walt Disney (who released their employee vaccination regulations) were invited to the White House on September 15. One of the executives at the meeting said their company has had a vaccination plan in the works for months but waited to release it until the official mandate from the White House. This shows that while private mandates are not uncommon in their own right, White House guidance will spread them even further. While businesses debate the necessity of mandates, their history stretches back hundreds of years.
Vaccine mandates are not a new phenomenon. The earliest mandate was established in Massachusetts in 1809 to combat smallpox and has been followed by vaccination mandates in schools, hospitals, cities, and states. In 1839, after thirty years of less than fifty total smallpox cases and deaths, the mandate was repealed over concerns of individual liberties. Just seventeen years following the repeal, there were over one thousand smallpox deaths, and Massachusetts reestablished the vaccine mandate. Though the timeline has moved more quickly in the present, there are similarities between the situations. In areas with low COVID vaccination rates, COVID cases and hospitalizations remain high. Some areas have begun to implement local vaccine mandates as a result.
Lawrence Gostin, a professor in global health law, said in an interview for NPR that he believes courts will uphold the various mandates, “particularly in the private sector and...states and cities.” Gostin acknowledges that the Biden administration does not have the power to enforce a nationwide mandate, because a federal mandate can only apply to federal employees. A mandate governing businesses with more than 100 employees would involve private entities, so it would not fall under the power of the presidency.
That is where the OSHA standard comes in. OSHA is authorized to establish Emergency Temporary Standards until a time when a permanent standard is created. Temporary Standards prevent immediately hazardous conditions in the workplace, and businesses that do not comply with the standards may be penalized. OSHA has considered COVID to be a danger to employees, and so they can put this order into effect. Debates of necessity aside, there are exemptions for those who cannot receive the vaccine for genuine religious and medical reasons. One such issue falls under the purview of the American Disabilities Act (ADA), which prevents discrimination against workers with disabilities. The ADA states that employers cannot ask about the disability status of their workers unless it is directly related to their job. If a worker with a disability cannot receive the vaccine for medical reasons, there is debate over whether it is legal for a business to ask that employee why; would it constitute inquiring about a disability? The OSHA mandate does have a middle-ground for both employers and employees: if workers are not vaccinated, they can instead provide a weekly negative test result.
The reaction is mixed. Many laud the mandates as a step in finally controlling the disease, while others see them as attacks on personal liberty. One large dissenting force in Massachusetts is the State Police Association of Massachusetts (SPAM). The union, which represents the majority of state police officers in Massachusetts, has sued the Baker administration over the state mandate for federal employees (separate from the Biden administration’s mandate). SPAM has requested that a clause allowing weekly testing instead of vaccination is added to the state regulations.
Boston University has also established mandatory vaccination in addition to weekly testing. Faculty response has been overwhelmingly positive, though there are notable dissenters. Professor Ari Trachtenberg has criticized the mandate in light of unknown future consequences, comparing it to the ethics involved in the Nuremberg trials. Citizens have also staged protests and rallies to fight against the regulations, including those for flu vaccines. The wide variability of response in just one city shows the level of disagreement that is occurring across the country. Despite this, the mandates move forward.
The federal regulations for mandatory vaccination take effect on November 22, while OSHA plans to release the Emergency Temporary Standard in several weeks. Protests and praise continue as the deadline rolls in, with research on both legality and effectiveness underway. Conversations about possible exemptions are important as well to balance personal privacy with corporate compliance. But as the Delta variant keeps the U.S. as one of the world’s hotspots for COVID-19 and with COVID-19 deaths rising in the past two weeks, the mandates hope to make meaningful changes in decreasing the spread of the virus.