On Thursday, September 9, President Biden signed executive orders requiring all federal executive branch employees and most federal workers to be vaccinated or face discipline. The President also announced a plan to mandate vaccines at all businesses with 100 or more workers or face mandatory weekly testing. His efforts to bring employers into the fight against COVID-19 will affect 80 million workers.
According to the White House, the Occupational Safety and Health Administration (“OSHA”), which is part of the Department of Labor, is drafting an emergency temporary standard to implement this requirement at large employers. Certain companies, such as United Airlines, Disney and even Fox News, already meet this requirement. President Biden also indicated that employers meeting this size will be obligated to give employees paid time off to receive the vaccination.
Will there be pushback from the anti-vaxxers and those with vaccine hesitancy? Yes.
Will there be push back from businesses? With current labor shortages and additional administrative burdens, yes.
But is there solid legal ground to order vaccines? The answer also is yes.
Over 100 years ago, the United States Supreme Court decided a case eerily similar to the arguments we are now hearing about why vaccines should not be mandated. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Cambridge Board of Health mandated that everyone receive the smallpox vaccine. Jacobson (supported by The Anti-Vaccination Society) refused, having previously had a bad reaction to a vaccine when he was a child. The Supreme Court, in a 7-2 decision, upheld the mandate, stating that real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of injury that may be done to others. The Jacobson decision relied in part on a New York case from the year before upholding, based upon the police power, the Legislature’s requirement prohibiting children from attending school unless they were vaccinated.
Our current, extremely conservative Supreme Court ultimately could have a say concerning the legality of President Biden’s actions. However, the Court has already refused to hear another case involving the University of Indiana’s student vaccine mandate. Moreover, for years many state departments of health have required children to be vaccinated to attend school and imposed similar requirements for teachers. In the end, we expect President Biden’s strong action to curb COVID-19 to be upheld.