Biden will require that all federal employees be vaccinated, with no option for those who prefer to be regularly tested instead. More audaciously, Biden will mandate all employers with more than 100 employees to require that their employees be vaccinated or, alternatively, that the employees take weekly coronavirus tests.
The White House estimates that Biden’s new policy will affect about 80 million workers — about two-thirds of the country’s workforce. Businesses that ignore the mandate could be fined up to $14,000 per violation.
Much of the instant commentary I’ve seen about this decision views it as an attempt to deflect attention from the Afghanistan debacle. That may be part of what’s going on.
But the main reason for the policy is that the surge of the coronavirus constitutes a massive threat to Biden’s presidency and to his political party.
Biden campaigned relentlessly on the pandemic. He blamed Donald Trump for it, ridiculously, and pledged to end the pandemic. He expected the vaccines that were about to become available (thanks in part to Trump) to do the trick, and he expected the end of the pandemic and the resulting economic surge to ensure his popularity.
It hasn’t worked out that way, and voters are holding Biden responsible.
That’s why he has reversed course on vaccine mandates. It’s an act of desperation.
At the same time, his vaccine mandates will likely produce significant health benefits. I say “likely” because we don’t know for sure. Israel vaccinated its population pretty thoroughly, yet new coronavirus cases there are at an all-time high and daily deaths from the virus are approaching one.
Moreover, any health benefits have to be weighed against the loss of freedom to control one’s body that Biden’s mandates entail. There is no objective means of performing such weighing. It comes down to one’s values.
Are Biden’s mandates lawful? My sense is that the federal government as an employer probably has the right to condition employment on being vaccinated.
Imposing such measures on other employers is, of course, more problematic. The government can and does impose certain requirements on employers that do business with it. But Biden’s mandates go further. They extend to employers of a certain size whether they do business with the feds or not.
The Biden administration will claim authority to do so via OSHA — the Department of Labor’s Occupational Safety and Health Administration. The claim will be that OSHA has the authority to order companies to take actions to protect their workers when the Secretary of Labor determines they face a grave danger.
OSHA is an area of the law about which I know next to nothing. Thus, I’m best advised not to opine at this point on whether OSHA provides a lawful basis for Biden’s stunning assertion of federal power. However, I do know this much — OSHA does not override the Constitution.