Updated: Feb 22, 2022
by Roundtable General Counsel William A. “Zan” Blue, Jr., Partner and Office Head
Constangy, Brooks, Smith & Prophete, LLP, Nashville
President Biden has issued an executive order concerning mandatory vaccination. The media reports are of wildly varying accuracy and the political hype is impressive to say the least. Here’s a summary of initial observations:
The order continues a long tradition of using employers to enforce government mandates of all sorts. This one, at least, doesn’t expressly use private litigation as the means for enforcement.
The order effectively requires vaccination for federal government employees. The president likely has authority to do this as the employer. Whether unions representing federal employees can meaningfully object is an open question.
The order requires renewed or new contracts with the federal government to include clauses requiring employees to be vaccinated. Again, the order concerns only renewal or new contracts. Whether the president has authority to issue this mandate depends on how the courts interpret statutes granting the executive branch to enter contracts with vendors. That authority historically has been broadly interpreted. The president likely will be held to have this authority, although we should expect conflicting judicial decisions as the matter works through the courts.
The order requires OSHA to issue a temporary emergency rule requiring employers to require employees (on workplaces with 100 or more employees) to be vaccinated or submit to weekly testing. That’s really about all it says. We don’t know what OSHA will issue or how long it will take. Whether OSHA has authority to issue such a temporary emergency rule without following the usual processes under the Administrative Procedure Act will be challenged. We can expect conflicting judicial decisions on that topic depending on what OSHA issues and how OSHA supports whatever it issues.
The order says CMS will require health care providers receiving Medicare or Medicaid funds to require employees and volunteers to be vaccinated. I simply don’t know whether CMS has this authority. It’s complicated.
There has been a rapid escalation in legal actions challenging executive branch actions arguing the agencies do not have the authority to issue a variety of rules. The courts have been receptive to many of these arguments, saying Congressional delegation of legislative authority does not authorize certain agency actions. In the recent Supreme Court case striking down the CDC prohibition on evictions, the majority opinion said: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”
Tennessee employers should continue to monitor developments closely as the various federal regulatory processes unfold, especially those associated with OSHA’s temporary emergency rulemaking.