Biden and Pentagon announce new vaccine requirements for federal employees—but can they do that?

President Joe Biden - federal COVID requirements
Photo via jlhervàs/Flickr (CC BY 2.0)

President Joe Biden announced a new round of COVID-19 mandates on July 29, including new vaccine requirements for federal employees and contractors, with the Pentagon following suit. The measure stopped short of federal vaccine requirements, but the guidelines ensure that those who still refuse to get vaccinated will face regular testing and some curtailment of their activities. 

“This is a pandemic of the unvaccinated,” Biden said in a speech from the East Room of the White House, as the New York Times reported. “People are dying and will die who don’t have to die. If you’re out there unvaccinated, you don’t have to die. Read the news.”

The article characterized his speech as Biden “effectively conced[ing] that the worst-in-a-century viral scourge he once thought was under control had come roaring back, threatening public health and the economic recovery that is central to the promise of his presidency.” 

Biden effectively said that those who remain unvaccinated from the network of about 4 million federal employees would need to submit to the extra inconveniences, which would include regular testing, social distancing, mask-wearing requirements, and limits on official travel. 

Biden was also looking to extend that for contractors, noting, “If you want to do business with the federal government, get your workers vaccinated.” 

And Biden also ordered the Defense Department to fast-track a similar move that would impact almost 1.5 million troops—with the Times noting that many of them have resisted vaccination to date.

The announcement did meet with some immediate pushback, however. “Forcing people to undertake a medical procedure is not the American way and is a clear civil rights violation no matter how proponents may seek to justify it,” Larry Cosme, president of the Federal Law Enforcement Officers Association, said. Cosme is one of several organizations coming out against the new guidelines. 

The American Postal Workers Union also said it was opposed to requiring vaccinations for its members, according to the Washington Post, even though a White House spokesperson clarified that U.S. Postal Service workers would not be subject to the mandate. 

As the Washington Post article noted, “The administration hopes that the new directive will have a ripple effect and persuade an array of state and local governments, as well as private companies, to push their workers and customers harder to become vaccinated.” 

That’s already happening to a degree. More than 70 health care providers have called for its employees and affiliated team members to be vaccinated, with the American Medical Association and the American Academy of Pediatrics among a growing number of medical organizations calling for all health care workers to be vaccinated. 

“Numerous businesses—including Netflix, Saks Fifth Avenue, The Washington Post, Ascension Health, Lyft, Google, and Morgan Stanley—all announced get-tough policies that require their workers to get shots as a condition of employment,” according to the Times. 

Vox’s Ian Millhiser, in an article exploring whether COVID-19 requirements are legal, concluded that they are. He cited the 1905 Jacobsen v. Massachusetts, involving a pastor who violated a smallpox vaccine mandate. 

“The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint,” Justice John Marshall Harlan wrote for the Court. He added that “there are manifold restraints to which every person is necessarily subject for the common good.”

Millhiser asserted that “under Jacobson, state and local governments—though not necessarily the federal government—may mandate vaccines for nearly all of their residents … Assuming that the courts follow existing law—and assuming that Republican state governments do not enact new laws prohibiting employers from disciplining workers who refuse to be vaccinated—most challenges to employer-imposed vaccination requirements should fail.” 

Sources: New York Times, Washington Post, Vox

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