On Sept. 9, President Joe Biden directed the Labor Department to develop a temporary emergency rule for businesses with 100 or more employees that would require workers to be fully vaccinated or be tested at least once a week. The administration says the rule would affect an estimated 80 million private-sector workers.
Some experts have said the vaccine requirement is legal under the Occupational Safety and Health Act. The law says the secretary of labor can issue “an emergency temporary standard,” or ETS, if “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and “that such emergency standard is necessary to protect employees from such danger.”
But the act hasn’t been used to implement vaccine requirements before, and legal challenges are expected.
“I think it’s a legitimate emergency standard in response to a legitimate emergency,” Robert I. Field, a professor of law and health management and policy at Drexel University, told us. Field said he did not believe there had been a legal test of a requirement like this before. But, he said, it was “within OSHA’s power.” (For more, see “Q&A on Biden’s COVID-19 Vaccine-or-Test Rule.”)
Employers are allowed to require their workers to get a vaccine, if vaccination is reasonably related to a person’s job, such as in the health care industry. In guidance issued in December 2020, the U.S. Equal Employment Opportunity Commission implied that all employers can have a mandatory vaccination policy, including for COVID-19, as long as employers comply with federal laws stipulating that reasonable accommodations should be made for workers who cannot be immunized because of a disability or religious reason.
States also can require individuals to be vaccinated.
As legal and public health expert Joanne Rosen of Johns Hopkins University has explained, the legal precedent for states to make vaccinations compulsory goes back to a 1905 Supreme Court case involving the smallpox vaccine. The court sided with the state, finding that the vaccination requirement was a reasonable regulation to protect public health.
The federal government cannot direct states to issue a vaccine mandate, but could provide financial incentives for states to do so.
“[T]he Supreme Court has interpreted the Tenth Amendment to prevent the federal government from commandeering or requiring state officers to carry out federal directives,” the Congressional Research Service explained in a 2019 report. “In the context of vaccination, this principle prevents Congress from requiring states or localities to pass mandatory vaccination laws, but it does not impede Congress from using its Spending Clause authority to provide incentives (in the form of federal grants) to states to enact laws concerning vaccination.”