- President Biden rolled out a new rule that employers with 100 or more workers must mandate the vaccine or require weekly testing.
- This adds to local and state-level rules requiring vaccinations in industries like
healthcare and food service. - This is a good part of a "swiss cheese" policy to increase population-wide vaccine rates.
- This is an
opinion column. The thoughts expressed are those of the author.
How "sweeping" is the Biden administration's plan to require every business with 100 or more employees to mandate COVID vaccination or weekly testing for their workers? It is sweeping.
But it's not clear to me it's that much more sweeping than other, less controversial policies already mandating vaccination for large populations. That is to say, other government bodies have imposed mandates that affect a larger percentage of the population they have under their jurisdiction that Biden would with his mandates (in Biden's case that would be the entire US population).
Implicitly, these mandates have two purposes: they seek to increase vaccination rates within a specific context involving specific transmission risks, but they also seek to increase vaccination rates in the general population and reduce general rates of COVID transmission by identifying substantial chunks of the population that can be pushed to get vaccines.
As you look around the country, you see cities and states already mandating vaccination - or strongly inducing it by otherwise imposing onerously frequent testing for the unvaccinated - in a variety of contexts:
- Governments are requiring their own employees to get vaccinated. Employers have a particular interest in getting their employees vaccinated, as this reduces sick days,
health care costs, and the spread of disease in the workplace. This applies also to the government as an employer. - Governments are requiring employees in particularly sensitive fields to get vaccinated. Many jurisdictions have imposed regulations requiring or inducing vaccination for workers in healthcare and education. New York City requires vaccination for workers in restaurants, bars and entertainment venues. These regulations apply to a mix of government and private-sector employees and are based on the idea that workers in these contexts have high levels of interpersonal contact or have contact with people at especially great risk from COVID.
- Governments are requiring students at various institutions to get vaccinated. Many states are requiring vaccination to enroll at public universities, and the Los Angeles Unified School District will even require vaccination for K-12 students aged 12 or older. Congregate settings like colleges and prisons are especially at risk for COVID outbreaks, justifying this regulation.
- Some governments are requiring customers of certain establishments to prove vaccination. This is less widespread than employment-based requirements, but jurisdictions including New York City and San Francisco have begun requiring proof of vaccination to enter bars, restaurants and gyms. This is based on the idea that these are contexts where COVID spread is especially likely.
None of these policies is uncontroversial, but they're within the realm of policies being considered and implemented in jurisdictions around the country. They tend to poll pretty well, too.
A "swiss-cheese" approach to getting people vaccinated
If you combine all the employment- and school-related categories with localized mandates already in place or on the way, you're talking about a really large fraction of the working-age American population that could be subject to a vaccine mandate. There are about 17 million Americans who work in healthcare, 12 million who work in food service establishments, and 24 million who work for some part of the government. Roughly 20 million Americans are enrolled at colleges and universities.
If you add in the universe of people who dine at restaurants, you're talking about a larger fraction of the population that could be subjected to these mandates than the roughly 100 million workers who would be covered by Biden's blanket employment-linked mandate.
Biden's policy is a sensible extension of the local policies we have seen, that would do more to increase vaccination rates because of its sheer scope. But he needs to make sure it holds up in court.
As Jonathan Adler of the Case Western Reserve University School of Law notes, OSHA's legal authority to require vaccines is likely extensive but not unlimited; the administration will have to be careful to tailor this rule to situations where employees face "grave danger" from COVID at the workplace - a standard that would hard to be meet when covering, for example, employees who work entirely from home. Limiting this rule to those actually at grave risk at work will likely shrink its scope below 100 million workers.
But that's all the reason to come up with more rules for other contexts (and indeed why Biden's announcement included several other simultaneous new areas of mandate).
OSHA's authority extends to the specific risk of getting COVID at work. But other government entities (not to mention private organizations) have authority over a variety of other areas of specific risk. If you put enough policies aimed at specific risks together - including a version of the OSHA rule designed to survive legal scrutiny - we'll end up with a better mandate policy that does as much as possible to combat the general risk of COVID in the whole population.
I see what gives people pause about the mandate, but these are unusual times
All of these mandates impose significant burdens on the often private entities that get charged with enforcing them. And while mandatory vaccinations are already common in schools, in the military, and for some types of international travel, in many of these settings people are unused to being told they must have received a specific medical intervention in order to be present.
And Biden's proposal is a federal policy, overriding the prerogatives of state and local governments to decide where vaccination should be required. Still, the federal government has valid interstate interests to assert here on behalf of the national public, because what happens in one state doesn't necessarily stay there.
Virus outbreaks travel across state lines. The economic impact can spread even more widely than the virus itself - the Delta wave has produced more pronounced negative economic effects in regions of the country with high vaccination rates and low incidence rates, likely because that is where members of the public are more concerned about rising case counts. And the federal government is a payer, through the Medicare and Medicaid programs, of costs generated by outbreaks.
I would not contend, as the ACLU has, that vaccine mandates are not an infringement on civil liberties. They are. But in this instance, the benefit to be reaped from a vaccine requirement is large and the cost to individuals who are coerced into vaccination is small (indeed, they benefit from receiving the vaccine). So it's good that the Biden administration is looking for legal tools to do so, and it should keep finding more.