Jay Blindauer
On September 9, 2021, President Biden announced his new plan to mitigate the COVID-19 pandemic. Relying upon available authorities without asking Congress to pass a law, the President announced upcoming mandates for—Government agencies, Government contractors, and any employer with at least 100 employees—to require each of their employees to obtain a COVID-19 vaccination.
For the vaccine mandate for Government employees, the President’s accompanying Executive Order (hereafter the “GovEmployee Order”)[1] relies upon the authority of the Government Organization and Employees statutes of 1966 at 5 U.S.C. §§ 3301, 3302, and 7301.
For the vaccine mandate for Government contractor employees, the President’s accompanying Executive Order (hereafter the “GovCon Order”)[2] relies upon the authority of the Federal Property and Administrative Services Act of 1949 (“FPASA”)[3] The GovCon Order does not expressly require that Government contractor employees are vaccinated, only that “the Federal Government provide adequate COVID-19 safeguards[.]”[4] Nonetheless, in the accompanying remarks, the President stated, “[n]ext, I will sign an executive order that will now require all executive branch federal employees to be vaccinated — all. And I’ve signed another executive order that will require federal contractors to do the same.”[5] Therefore, the directive is clear as to what the President considers to be “adequate COVID-19 safeguards.”[6]
And for the vaccine mandate for any employer with at least 100 employees (hereafter the “OSHA mandate”), the President is ordering the U.S. Department of Labor (“DoL”), Occupational Safety and Health Administration (“OSHA”), to regulate and create an Emergency Temporary Standard (“ETS”) pursuant to the Occupational Safety and Health Act of 1970 (“OSH Act”).[7] Unlike the GovEmployee and GovCon Orders, the OSHA mandate ostensibly permits an individual employee to be “fully vaccinated or show a negative test at least once a week.”[8]
GovEmployee Order
For Government employees of Government agencies actually covered by the GovEmployee Order (which are 5 U.S.C. § 105 agencies, expressly excluding GAO),[9] the GovEmployee Order requires the inter-agency Safer Federal Workforce Task Force to supply guidance no later than September 16, 2021.[10] Thereafter, each covered agency is to implement “a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.”[11] One caveat is that the GovEmployee Order only applies to Government employees who are subject to 5 U.S.C. § 2105. So, for example, that excludes any employee of the U.S. Postal Service or the Postal Regulatory Commission.[12]
GovCon Order
Turning to the GovCon Order vaccination requirement, it will only apply to some contractors and subcontractors for some agencies. Emphasis on the word some.
Specifically, the GovCon Order applies for contractors/subcontractors of “[e]xecutive departments and agencies, including independent establishments subject to the Federal Property and Administrative Services Act, 40 U.S.C. 102(4)(A)[.]”[13] Of note, the language excludes wholly-owned government corporations, which are covered under FPASA at 40 U.S.C. § 102(4)(B). Moreover, FPASA arguably does not apply to mixed-ownership government corporations.[14] Consequently, contractors of Government corporations—such as the Government corporations enumerated in the Government Corporation Control Act of 1945 at 31 U.S.C. § 9101—are apparently not subject to the GovCon Order.
Next, the GovCon Order generally applies to a “contract or contract-like instrument[,]” which is defined as almost any legally enforceable instrument including “procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.”[15]
Despite the broad description, in the context of a procurement contract or a real property lease, the GovCon Order only applies to the following types of contracts.
“(i) [I]t is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
(ii) it is a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
(iii) it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or
(iv) it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public[.]”[16]
Noticeably, the list does not include supply contracts. Also, the GovCon Order expressly does not apply to the following:
Contracts and other agreements under the Indian Self-Determination and Education Assistance Act of 1975;
Federal grants;
“[C]ontracts or subcontracts whose value is equal to or less than the simplified acquisition threshold” (presently $250,000, unless the procurement meets a FAR 2.101 contingency/disaster exception);
A contractor/subcontractor employee who is performing outside the United States (as that term is defined at FAR 2.101, or in one of the relevant FAR 2.101 exceptions); and
A supply subcontract, even if supplying a prime contract which is subject to the GovCon Order.[17]
Further, since the GovCon Order was issued pursuant to FPASA, if a contract does not fall within the ambit of FPASA (e.g., a personal services contract), it should not be subject to the GovCon Order.[18]
Furthermore, the GovCon Order is only mandatory for new solicitations and contracts after October 15, 2021.[19] It generally only becomes mandatory for currently existing solicitations and contracts when an option/extension is exercised.[20] And even then, if the contract is a commercial services agreement subject to FAR Clause 51.212-4, that agreement can only be modified bilaterally.[21] Consequently, if a commercial services contractor does not want to accept the GovCon Order vaccine mandate, it will not apply.
Finally, the GovCon Order states that “this order shall be implemented consistent with applicable law and subject to the availability of appropriations.”[22] Those are two big exceptions. Obviously, other law will put holes in the mandate. And this vaccine mandate imposes costs on the contractor that the Government will have to pay. If a procuring agency does not have appropriations to obligate to the contract and pay for the mandate, it is of no legal effect.[23]
As for implementation of the GovCon Order, oddly, the Order does not ask the Federal Acquisition Regulatory Council (“FARC”) to go through its process of proposing and finalizing a change to the Federal Acquisition Regulation (“FAR”).[24] Instead, the GovCon Order commands the FARC to, by October 8, 2021, provide “policy direction to acquisition offices” which procuring agencies will use to implement FAR Deviations under FAR Subpart 1.4.[25]
I am not sure what this unconventional approach is supposed to expedite. Particularly, FAR 1.501-2(b) provides that when a possible FAR Deviation will have a significant cost and/or administrative impact on a contractor (which the GovCon Order arguably will), “[t]he opportunity to submit written comments on proposed significant revisions shall be provided by placing a notice in the Federal Register.”[26] “A minimum of 30 days and, normally, at least 60 days will be given for the receipt of comments.”[27] So, the GovCon Order does not sidestep notice and comment rulemaking, but pushes it further down the line.
Moreover, a FAR Deviation is potentially subject to a legal challenge. See Calcasieu Refining Co. v. United States, 2003 WL 22049528, at 9 (Fed. Cl. 2003) (“This court therefore concludes that the individual deviation sought and granted for contracts awarded pursuant to solicitation DLA600–93–R–0061 was invalid and illegal under the FAR.”).
OSHA Mandate
Even if a Government employee or contractor/subcontractor employee is not subject to the GovEmployee and GovCon Orders, s/he may fall under the OSHA mandate. OSHA is fairly ubiquitous,[28] and even has purview over most Federal workplaces, although not to the same extent as OSHA’s oversight of private employers.[29]
Specifically, in the President’s September 9 remarks, he stated “I’m announcing that the Department of Labor is developing an emergency rule to require all employers with 100 or more employees, that together employ over 80 million workers, to ensure their workforces are fully vaccinated or show a negative test at least once a week.”[30] Hence, the President wants OSHA to issue an ETS.
Under the OSH Act at 29 U.S.C. § 655(c)(1), the DoL Secretary has the authority to issue an ETS that will “take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”[31] Once OSHA puts out an ETS, it has six months to follow-up the ETS with a permanent safety rule that conforms to the notice and comment rulemaking process provided at 29 U.S.C. § 655(b).[32]
An OSHA ETS is extraordinarily rare. In fact, prior to OSHA’s June 21, 2021 COVID-19 ETS for healthcare workers,[33] the last time OSHA issued an ETS was November 4, 1983, and it was for an asbestos hazard.[34] However, in 1984, the U.S. Court of Appeals for the Fifth Circuit found that ETS to be legally invalid because OSHA failed to adequately support the safety standard, or show that it was necessary.[35]
It is also worth noting that OSHA does not have any other vaccine mandate. Arguably, the only thing that comes close is the bloodborne pathogen safety standards at 29 C.F.R. § 1910.1030, which require an employer to make available a Hepatitis B vaccine.[36] However, those rules expressly contemplate that the Hepatitis B vaccine is voluntary for the employee, and there is no periodic testing requirement imposed on the employee in order for the employee to opt out.[37]
Obviously, the public has not yet seen the contemplated ETS. And there are a lot of details to be worked out, such as what precisely will constitute a violation that warrants the announced $14,000 fine, what information will go on OSHA Forms 300, 300-A, and 301, and any specific coordinating instructions for challenging a citation and/or proposed penalty, etc.
Impact of Other Law
Whether talking about the GovEmployee or GovCon Orders, or the OSHA mandate, other law carves holes into the policy.
Particularly, under the Americans with Disabilities Act of 1990 (“ADA”), it is illegal workplace discrimination to fail to make a “reasonable accommodation[ ] to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity[.]”[38] The definition of a “disability” is “a physical or mental impairment that substantially limits one or more major life activities of such individual[,]” and a temporary period of disability can still qualify.[39] Hence, if an employee has a condition that makes taking the COVID-19 vaccine medically improvident (such as being allergic to a vaccine ingredient, or presently undergoing a medical treatment not compatible with the vaccine), failing to accommodate the employee may violate the ADA. The legal requirement to make a reasonable accommodation for a Government employee that has a disability is found in the Rehabilitation Act of 1973.
Additionally, under the Pregnancy Discrimination Act of 1978 (“PDA”), “[a]n employer is required to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other temporarily disabled employees[.]”[40] Thus, if a pregnant employee is temporarily unable to meet a job requirement of obtaining a COVID-19 vaccine because of a pregnancy-related condition, taking adverse employment action against the employee could constitute a violation of the PDA.
Similarly, Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of religion, and consequently requires an employer to “reasonably accommodate” an employee’s religious practice unless it would cause “undue hardship on the conduct of the employer’s business.”[41] Hence, if an employee has a sincerely held religious belief or practice that is causing the individual to forbear from obtaining a COVID-19 inoculation, it could be workplace discrimination for an employer not to accommodate.
The Religious Freedom Restoration Act of 1993 (“RFRA”) at 42 U.S.C. § 2000bb-1 provides an even more robust prohibition. Specifically, under RFRA, the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability[.]”[42] “The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”[43] If the Government substantially burdens a person’s religious exercise, the burden must be “in furtherance of a compelling governmental interest[,]” and the Government must elect “the least restrictive means of furthering that compelling governmental interest.”[44]
RFRA expressly states that it “applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.”[45] And RFRA confers a private cause of action—”[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”[46] That relief can include an injunction and/or monetary damages.
Therefore, if a Government employee’s religious exercise causes the individual to eschew a COVID-19 inoculation, the Government’s compelling interest for improving workplace safety vis-a-vis COVID-19 must impose “the least restrictive means[.]”[47] Consequently, for many Government employees, RFRA just became the Telework Freedom Restoration Act of 2021. And it does not end there. In FNU Tanzin v. Tanvir, the Supreme Court made clear that, under RFRA, a government official can be sued in his/her individual capacity.[48] S/he is not shielded by the Westfall Act.[49] Hence, generally, RFRA will make any Government manager think twice about not granting a COVID-19 vaccine religious exemption.
Moreover, under RFRA, the Government expressly includes “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.”[50] It is the term “other person acting under color of law” that is the most interesting.[51] In United States v. Price, the Supreme Court stated that “[p]rivate persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law . . . To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.”[52] Consequently, for the COVID-19 vaccine mandate, RFRA potentially reaches contractors/subcontractors and other private employers.[53] In turn, the President’s new COVID-19 policy may have just summoned a tidal wave of religious exemptions.
As one example, “the COVID-19 vaccines do not contain any aborted fetal cells[,]” but, for “the Pfizer and Moderna COVID-19 vaccines, fetal cell line HEK 293 was used [for testing] during the research and development phase. All HEK 293 cells are descended from tissue taken from a 1973 abortion that took place in the Netherlands.”[54] Some individuals may take religious qualms with this fact, and that could be the basis for not partaking and seeking a RFRA religious exemption.
Next, under the National Labor Relations Act of 1935 (“NLRA”)[55] at 29 U.S.C. § 158(a)(5), an employer that has a unionized shop cannot refuse to bargain with the union over changes to employment conditions. Indeed, “labor law presumes that a matter which affects the terms and conditions of employment will be a subject of mandatory bargaining.”[56] Further, requiring workers to obtain a vaccine for workplace safety purposes is the type of change subject to bargaining.[57] Therefore, unless an in-place collective bargaining agreement already grants to the employer the unilateral right to impose a vaccination requirement, the NLRA generally requires that a union is given notice of any proposed changes, and an opportunity to negotiate.
The NLRA also protects non-union employees engaging in collective activity. Particularly, the NLRA states that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]”[58] And it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by the foregoing.[59] Accordingly, if employees are meeting, discussing, protesting, or banding together to engage with management vis-à-vis the COVID-19 vaccine mandate, those activities could be protected under the NLRA. In turn, employer interference could constitute a violation.
This recitation of legal carve-outs is not intended to be exhaustive.
Challenges for the GovEmployee Order
Beyond the general legal carve-outs, there are issues specific to each of the three policies.
Regarding the GovEmployee Order, it is important to remember that, once Federal employment is obtained, many Government employees possess a Fifth Amendment property right to it.[60] In turn, a Government employer cannot deprive that right without due process.[61] Hence, at a minimum, due process means giving an employee fair notice of the alleged employment issue, and a meaningful opportunity to respond.[62]
Moreover, for many Government employees, that due process occurs within the protections of the Civil Service Reform Act of 1978 (“CSRA”). One of those protections, provided at 5 U.S.C. § 4303, does not permit reduction in grade or removal for an “unacceptable performance” issue unless the individual:
(1) receives 30 days advanced written notice of the issue;
(2) an opportunity to be represented by counsel;
(3) “a reasonable time to answer orally and in writing[;]” and
(4) a written decision that elaborates the reason for the reduction or removal and has the concurrence of a higher authority.[63]
And as the Merit Systems Protection Board (“MSPB”) has stated, “ ‘[u]nacceptable performance,’ as defined by 5 U.S.C. § 4301(3), means ‘performance . . . which fails to meet established performance standards in one or more critical elements of such employee’s position.’ ”[64] Therefore, unless an agency is prepared to formally make COVID-19 inoculation a critical element of an employee’s performance—and reasonably, it should not be, because in most cases an individual can successfully perform without it—then CSRA does not allow performance-based reduction or removal due to an employee merely failing to be vaccinated. Alternatively, the agency can attempt to sidestep 5 U.S.C. § 4303 by treating non-vaccination as misconduct. If that occurs and the employee does not qualify for any exception, and the employee does not have union/collective bargaining assistance, the employee can remain respectful, and keep attempting to work with supervisors on a compromise. However, at some point the employee may have to take the vaccine, or risk an adverse employment action and/or be willing to mount a legal challenge.
Turning to Government employee unions, similar to the NLRA, under the Federal Service Labor‑Management Relations Statute[65] (Title VII of CSRA, hereafter “FSL-MRA”), “[i]t is well established that before changing conditions of employment, an agency must provide the union with notice and an opportunity to bargain over those aspects of the change that are within the duty to bargain.”[66]
FSL-MRA defines “conditions of employment” as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters– (A) relating to political activities prohibited under subchapter III of chapter 73 of this title; (B) relating to the classification of any position; or (C) to the extent such matters are specifically provided for by Federal statute[.]”[67]
Imposing a COVID-19 vaccine mandate certainly is a personnel policy and/or a practice affecting working conditions. Consequently, it is a changed condition of employment. Hence, just like under the NLRA, unless the bargaining unit agreement already grants to the agency the unilateral right to impose a vaccination requirement, the agency has to negotiate. Otherwise, the agency is likely violating FSL-MRA, and the union can press it rights with the Federal Labor Relations Authority.
Challenges for the GovCon Order
Generally speaking, the ideal scenario is that a relevant agency FAR Deviation will recognize and furnish the flexibility necessary to carry out this policy. A lot of contracts and subcontracts will fall outside of the GovCon Order (but maybe not the OSHA mandate). And, generally, it is foreseeable that there are going to be a lot of labor/employee management issues, and a lot of individual exemptions will be granted. The risk is that the GovCon Order causes employees to quit, the employees are difficult to replace in an already challenging labor market, and the circumstance delays, adds costs to, and/or completely frustrates contract/subcontract performance.
The Government cannot avoid paying for this new contract safety requirement by hiding behind the Sovereign Acts Doctrine (“SAD”). The SAD concept is that when the Government acts in its capacity as a lawmaker or regulator, and it creates a new rule that incidentally impacts contract performance (such as Congress passes a law that happens to increase the cost of performance), the Government is not liable to the contractor.[68] The SAD is meant to help keep separate the Government’s role as sovereign from its role as a contracting party. For SAD to apply, the at-issue new rule must be “public and general, [and] cannot be deemed specially to alter, modify, obstruct or violate the particular contracts into which it enters with private persons[.]”[69]
Here, the GovCon Order was specially created to apply to contractors, and consequently should not qualify as a public and general act. Moreover, in his September 9 remarks, the President expressly stated that, “[i]f you want to work with the federal government and do business with us, get vaccinated. If you want to do business with the federal government, vaccinate your workforce.”[70] Indeed, the GovCon Order is the Government acting in its role as a contracting party. In turn, it shall pay.
In light of the foregoing, the following principles may guide execution.
- As already addressed, there are a lot of legal exceptions for this sort of thing, so flexibility, flexibility, flexibility.
- Keep track of the implementation costs. The vaccines are free. The employee paid time-off, potential overtime or other acceleration costs, tracking, paperwork, recordkeeping, and reporting is not. Additionally, if free COVID-19 testing is unavailable, or the right testing is unavailable, the employer may have to pay for it.
- The basic FAR Changes Clause requires that the contractor notify the Contracting Office of a possible request for equitable adjustment within 30 days of the change.[71] That notice is supposed to also include a rough cost estimate. This will help the Contracting Office ascertain what new funds need to be obligated, and whether the funds are available.
- Vaccination information is private health information. Generally, the ADA,[72] Family Medical and Leave Act of 1993 (“FMLA”),[73] and the Genetic Information Nondiscrimination Act of 2008 (“GINA”)[74] all require an employer to keep that information confidential and separate from regular employee records. That means only certain individuals get to see it. For most contractors/subcontractors, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) will not apply unless the employer is a health plan, healthcare clearinghouse, healthcare provider, or a business associate thereto.[75] However, if the employee does not directly provide proof of vaccination, the employee will need to provide HIPAA consent for a medical provider to release that information to the employer. The GINA regulations provide some model language for how to request vaccine information from an employee.[76]
- Ideally, a Government official will just ask for an anonymized accounting of who is/is not vaccinated. If the official asks for by-name information, it is appropriate to ask the official if they have a Privacy Act of 1974[77] System of Records Notice (“SORN”) number for that information. Further, care should be taken as to how the information is sent. Ideally, it should go directly into a Privacy Act System of Records. For DoD, a COVID-19 inoculation can be documented on a DD Form 3150 or DHA Form 207, illness/exposure can be reported on a DD Form 3112, and DoD does have Privacy Act Records Systems for storing the information.
- One question is whether the contractor/subcontractor will receive indemnification for any individual vaccine injury. Since it is the Government that is ultimately compelling the vaccination, it is appropriate for the Government to indemnify the contractor/subcontractor. Indeed, the vaccine suppliers are immune from liability under Public Readiness and Emergency Preparedness Act of 2005 (the “PREP Act”), and the Government’s liability for any vaccine injury is limited by the Countermeasures Injury Compensation Program (“CICP”), and the National Vaccine Injury Compensation Program (“VICP”).[78] It is possible that a contractor/subcontractor may not be at risk of liability because of supervening causation, or a lack of proximate causation, for any vaccine injury, and there may be other ways to shift responsibility to the Government (e.g., the Government Contractor Defense or the de facto government employee defense). Nevertheless, why leave the question open? Ideally, any prime contract modification will provide an indemnification that extends to pertinent subcontractors. As part of this, if a covered employee does not qualify for a legal exemption, and the agency is not permitting an alternate safety measure (such as telework), then it is generally good sense for the contractor/subcontractor to refrain from recommending a specific vaccine.
- Although Federal law may preempt some aspects of state law, state law may still be relevant for some implementation of the GovCon Order.
Challenges for the OSHA Mandate
Finally, arguably the most legally problematic aspect of the President’s new plan is the OSHA mandate.
First, using OSHA to marionette private employers to compel private citizens to get a vaccine, regardless of occupation or nature of workplace, is peculiar. Part of what makes it out-of-place is that OSHA has never before had a vaccine mandate. And, generally speaking, the workplace safety measures that OSHA imposes on an individual employee—hard hat, goggles, steel-toed boots, leggings, etc.—have an important common feature. These measures go away when the employee leaves the workplace. Not so with a vaccine. A vaccine mandate puts OSHA in the uncomfortable position of not just regulating workplace safety, but regulating public health. That potentially exceeds the regulatory authority conferred by the OSH Act.
To attempt to squeeze the vaccine mandate into the OSH Act scope of authority, the Government’s announced plan is to allow an employee to opt out by undergoing weekly testing. Perhaps a U.S. District Court will find that adequately reduces the vaccine mandate to make it fit in the OSH Act. If so, the ETS will make the OSH Act authority about to burst at the seams.
Second, by promulgating the vaccine mandate through an ETS, the Government faces a difficult legal challenge, which is virtually guaranteed to occur. Specifically, the OSH Act at 29 U.S.C. § 655(f) provides for judicial review of an ETS if a challenge is filed within 60 days of issuance of the ETS. Further, to be legally sufficient, an ETS must be “supported by substantial evidence in the record considered as a whole.”[79] This is a stricter standard than the scrutiny that agency rulemaking receives under “the more deferential arbitrary and capricious standard applicable to agencies governed by the Administrative Procedure Act [of 1946].”[80] Ultimately. “[t]he ETS statute requires that the [DoL] Secretary issue an ETS only after he finds substantial evidence indicating both that a ‘grave danger’ exists and that an emergency standard is ‘necessary’ to protect workers from such danger.”[81]
Again, in order to access the regulatory authority of the OSH Act, the Government had to frame this as a workplace safety, and not a public health, issue. Accordingly, the problem that has to be addressed is virus transmission, because OSHA does not generally regulate infectious disease, only workplace hazards. And the Government’s imposed measures can only be deemed necessary if they actually work. Consequently, to prevail, the Government must provide substantial evidence that its measures will adequately stop the workplace transmission of COVID-19. The President’s September 9 remarks arguably acknowledge as much—”We’re going to reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America.”[82]
However, as reported by the Washington Post on July 28, 2021, according to the CDC Director, Dr. Rochelle Walensky, “New data suggests that people who are vaccinated and have breakthrough infections from the delta variant may have as much viral load as a person who is unvaccinated, which suggests they may be able to spread it to others, Walensky said.”[83] NIAID Director, Dr. Anthony Fauci, is more direct—“People who are vaccinated, even when they’re asymptomatic, can transmit the virus, which is the scientific foundation of why this [masking up] recommendation is being made.”[84]
Hence, the highest public health officials recommend mask wearing because the current vaccines are not adequately stopping COVID-19 Delta transmission. Yet, OSHA will issue an ETS mandating the current vaccines as necessary to prevent workplace COVID-19 Delta transmission. It is an apparent inconsistency that the Government will have to resolve to prevail in a court challenge.
Turning to the weekly testing option, the effectiveness of the measure depends upon the quality of the test. “The risk of false-negative or false-positive test results depends on the type and sensitivity of the COVID-19 diagnostic test, thoroughness of the sample collection, and accuracy of the lab analysis.”[85] And it remains to be seen how exact the ETS will be in what it specifies.
It is also worth noting that, for some workers who practically cannot meet the weekly testing demand, the proposed ETS offers a Hobson’s choice that is really just a vaccine mandate. And, as already stated, a pure vaccine mandate arguably does not fit within the OSH Act scope of authority.
The proposed ETS is also overbroad in that it does not recognize the natural antibodies possessed by a person who has already had COVID-19. Consequently, the ETS fails to provide an exception for these persons. As stated by the Former FDA Commissioner, Dr. Scott Gottlieb, “The immunity conferred by natural infection seems to be robust and seems to be durable. We know it lasts at least six months, probably longer[.]”[86] Since natural immunity lasts at least six months, that potentially covers the six-month period of the ETS. Meanwhile, the CDC presently states, “We don’t know how long protection lasts for those who are vaccinated.”[87] Not knowing obviously does not meet the substantial evidence standard for promulgating an ETS.
One open question is whether a state government will have standing to challenge the ETS. Facially, the OSH Act at 29 U.S.C. § 652(5) excludes a state government from the definition of an employer. However, pursuant to 29 U.S.C. § 667, there are 22 states that have OSHA-approved general rules which displace the Federal OSHA standards and apply to the respective state governments.[88] Additionally, six more states have OSHA-approved rules that apply solely to their respective state and local governments.[89] The OSH Act makes clear that, to displace Federal OSHA standards, those state regimes must be “at least as effective in providing safe and healthful employment and places of employment[.]”[90] Therefore, the ETS drafters must either draft intending that the ETS will be included in the state OSHA regimes, and thus open the ETS to a state’s judicial challenge. Or, they must deliberately preclude state application, which potentially violates 29 U.S.C. § 667(c)(2) and severely undercuts the argument that the ETS is necessary. The drafters are between the devil and the deep blue sea.
Two final points on the legal problems with the OSHA mandate. The OSH Act makes it a misdemeanor if an employer willfully violates an ETS, and that violation results in the death of an employee.[91], [92] Thus, the proposed ETS potentially criminalizes business owners/managers if they do not compel employees to get vaccinated. Consequently, I would say to any Government official involved in pushing the ETS forward, if there is any material lack of confidence that these are the right standards at the right time, rightly applied, this rightly forecloses other workplace options, and this will obtain the sought result, then the ETS is also legally deficient because it potentially unjustly subjects an employer to criminal penalty.
Second, everyone is struggling to identify the best ways to redress the pandemic, and that occurs both at the individual and community levels. However, if this ETS goes forward, because of its wide application, it may prematurely establish a standard for tort negligence that not only is ultimately unsuitable, but may hold an employer liable for failing to hold back an ascendant force majeure, and despite that everyone else has failed.[93] That said, because of a would-be plaintiff’s burden to show proximate causation, this risk may be small. And that sword cuts both ways. Specifically, OSHA is not necessarily immune from being sued under the Federal Tort Claims Act of 1946 for failing to inspect vis-à-vis the contemplated ETS.[94]
The Bigger Picture
It is important to remember that “a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment[.]”[95]
Like any other constitutional right, it is not unlimited, but it also cannot be easily infringed. A state government has broad powers, in part conferred by the Tenth Amendment,[96] and a state even occasionally has the power to generally mandate a vaccine.[97] The Federal government is not similarly situated. The Federal government is a government of limited and enumerated powers.[98] In turn, “[e]xcept in certain limited circumstances, including in the immigration and military contexts, no existing federal law expressly imposes vaccination requirements on the general population.”[99] It is also unsettled whether the Federal government has the constitutional authority to generally mandate a vaccine.
Hence, the Federal government introducing a vaccine mandate for private citizens is not a matter of small legal significance. It is unprecedented, impactful, and consequential, and not just for present circumstances. It reaches far into the future. And it is immaterial that the President is using private employers as a cat’s paw to impose the requirement. It is still the Federal government imposing a form of vaccine mandate.
Therefore, arguably, the proper, and certainly less legally fraught, way to undertake the President’s new COVID-19 policy is for Congress to pass a statute. As detailed above, there are a lot of legal issues with trying to implement the policy through Executive Order and pronouncement. A statute could resolve some of those legal issues so that such a policy might be implemented with reasonable uniformity and greater consistency with existing law.
[1] See Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees (Sept 9, 2021) (hereafter “GovEmployee Order”), available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-requiring-coronavirus-disease-2019-vaccination-for-federal-employees/.
[2] See Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (Sept. 9, 2021) (hereafter “GovCon Order”), available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/.
[3] See 40 U.S.C. § 101 et seq.
[4] GovCon Order § 1.
[6] GovCon Order § 1.
[7] See 29 U.S.C. § 651 et seq. The OSH Act applies to “employment performed in a workplace in a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Wake Island, Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act, Johnston Island, and the Canal Zone.” Id. at § 653(a); 29 C.F.R. § 1910.5(a); see also https://www.osha.gov/laws-regs/standardinterpretations/2015-02-10. Of the 1947 Trust Territory of the Pacific Islands, the only remaining U.S. territory is the Commonwealth of the Northern Mariana Islands (“CNMI”) (most notably Saipan, Tinian, Rota, and Pagan).
[9] A 5 U.S.C. § 105 agency “means an Executive department, a Government corporation, and an independent establishment.” 5 U.S.C. § 105. The definition does not include the U.S. Postal Regulatory Commission or the U.S. Postal Service. See id. at § 104; Banks v. Merit Sys. Protection Bd., 854 F.3d 1360, 1362 (Fed. Cir. 2017) (“The Postal Service is not an ‘Executive department’ or a ‘Government corporation’ as defined in relevant part under 5 U.S.C. §§ 101 and 103.”).
[10] See GovEmployee Order § 2.
[11] Id.
[12] See 5 U.S.C. § 2105(e).
[13] GovCon Order § 2.
[14] See GAO, Report to the Ranking Minority Member, Subcommittee on Post Office and Civil Service, Committee on Governmental Affairs, U.S. Senate, Profiles of Existing Government Corporations, GAO/GGD-96-14, App’x V, at 78 (Dec. 1995) (“The definition section of 40 U.S.C. 472 does not apply to mixed-ownership government corporations.”), available at https://www.gao.gov/assets/ggd-96-14.pdf.
[15] 86 Fed. Reg. 38,816, 38,887 (July 22, 2021).
[16] GovCon Order § 5(a).
[17] See id. at § 5(b).
[18] See 40 U.S.C. § 101.
[19] See GovCon Order § 6(a).
[20] See id. at § 6(b).
[21] See FAR Clause 52.212-4(c) (“Changes in the terms and conditions of this contract may be made only by written agreement of the parties.”).
[22] See GovCon Order § 7(b).
[23] See 31 U.S.C. § 1341(a)(1).
[24] See GovCon Order § 3(a).
[25] See id.
[26] FAR 1.501-2(b); see also Navajo Refining Co., L.P. v. United States, 58 Fed. Cl. 200, 207-08 (2003) (“The FAR does not specifically address publication requirements for class deviations. However, the FAR does require that for ‘significant revisions ‘ to FAR provisions, ‘[t]he opportunity to submit written comments on proposed significant revisions shall be provided by placing a notice in the Federal Register.’ FAR § 1.501–2(b) (2002) (emphasis added); Pls.’ App. at 76 (emphasis added). A significant revision ‘alter[s] the substantive meaning of any coverage in the FAR System having a significant cost or administrative impact on contractors [or having] a significant effect beyond the internal operating procedures of the issuing agency.’ FAR § 1.501–1 (2002); Pls.’ App. at 76.”
[27] FAR 1.501-2(c).
[28] But, it is not universal. It is important to remember that, generally, OSHA rules either displace, or are displaced by, other safety/health laws. So, for example, consider other Federal agencies that put forth employee safety/health regulations—the Environmental Protection Agency, Nuclear Regulatory Commission, Mine Safety and Health Administration, Federal Aviation Administration, Federal Motor Carrier Safety Administration, Pipeline and Hazardous Materials Safety Administration, U.S. Coast Guard, Federal Railroad Administration, etc. If any of these agencies regulate safety/health standards for specific working conditions, OSHA’s rules likely give way to the more specific rules and become null for those conditions. See Mushroom Transp. Co., 1 O.S.H. 1390, at 2 (Nov. 7, 1993) (“Once another Federal agency exercises its authority over specific working conditions, OSHA cannot enforce its own regulations covering the same conditions.”); 29 U.S.C. § 653(b)(1) (“Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 2021 of Title 42, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.”). Also, with DoL approval, Section 18 of the OSH Act permits state safety/health laws to displace OSHA safety/health rules. Accordingly, 22 states have OSHA-approved generally applicable safety/health rules that take the place of OSHA’s rules for workplaces in those states. So, for example, for Virginia, a Federal contractor/subcontractor should look to the OSHA-approved rules of the Virginia Occupational Safety and Health (“VOSH”) Program. And for California, a Federal contractor/subcontractor should look to the OSHA-approved rules of the California Department of Industrial Relations, Division of Occupational Safety and Health (“DOSH”), known as “Cal/OSHA.”
[29] See OSHA Field Operations Manual, Directive No. CPL 02-00-164, Ch. 13 (Apr. 14, 2020), available at https://www.osha.gov/enforcement/directives/cpl-02-00-164/chapter-13.
[31] 29 U.S.C. § 655(c)(1).
[32] Id. at § 655(c)(2)-(3).
[33] See Occupational Exposure to COVID-19; Emergency Temporary Standard, 86 Fed. Reg. 32,376-32,628 (June 21, 2021).
[34] See Asbestos Info. Ass’n/No. Am. v. Occupational Safety and Health Admin., 727 F.2d 415, 417 (5th Cir. 1984).
[35] See id. at 427.
[36] See 29 C.F.R. § 1910.1030(f)(1)(i); Robert Iafolla, et al., Biden’s Vaccine Mandate Plan Has Shot Despite Past Court Losses, bloomberglaw.com (Sept. 14, 2021) (“ ‘This is certainly the first time that OSHA has mandated vaccination,’ said Melissa Peters, a Littler Mendelson P.C. attorney who previously worked for California’s workplace safety agency. ‘It’s a bold statement, and I can’t believe they actually did this.’ “), available at https://news.bloomberglaw.com/daily-labor-report/biden-workplace-vaccine-mandate-plan-primed-for-court-challenges.
[37] See 29 C.F.R. § 1910.1030(f)(2)(iv).
[38] 42 U.S.C. § 12112(b)(5)(A).
[39] See id. at § 12102(1).
[40] 29 C.F.R. Part 1604, App’x (Questions and Answers on the Pregnancy Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978)).
[41] 42 U.S.C. § 2000e(j). However, under Title VII, an employer can show an undue hardship if the accommodation imposes more than a de minimis cost/burden on business operations.
[42] 42 U.S.C. § 2000bb-1(a); but see Boerne v. P.F. Flores, 521 U.S. 507, 534-36 (1997) (RFRA found unconstitutional as it applies to the states).
[43] 42 U.S.C. §§ 2000bb-2(4) and 2000cc-5(7)(A).
[44] Id. at § 2000bb-1(b).
[45] Id. at § 2000bb-3(a).
[46] Id. at § 2000bb-1(c).
[47] Id. at § 2000bb-1(b).
[48] See FNU Tanzin v. Tanvir, 141 S. Ct. 486, 493 (2020) (“We conclude that RFRA’s express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities.”).
[49] See id. at 491-92.
[50] 42 U.S.C. § 2000bb–2(1).
[51] Id.
[52] United States v. Price, 383 U.S. 787, 794 (1966).
[53] RFRA acts similar to a Bivens cause of action against an individual Federal official for violating a plaintiff’s constitutional rights. A Bivens suit also permits bringing suit against private individuals acting under color of Federal law in conjunction with a Federal official. However, the Supreme Court has established that a company cannot be a Bivens defendant, only an individual. See Constitutional Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001) (“[I]f a corporate defendant is available for suit, claimants will focus their collection efforts on it, and not the individual directly responsible for the alleged injury.”).
[54] Dr. James Lawler, M.D., You asked, We answered: Do the covid-19 vaccines contain aborted fetal cells, nebraskamed.com (Published Aug. 18, 2021), available at https://www.nebraskamed.com/COVID/you-asked-we-answered-do-the-covid-19-vaccines-contain-aborted-fetal-cells.
[55] See 29 U.S.C. §§ 151-69.
[56] Newspaper Guild v. NLRB, 636 F.2d 550, 561 (D.C. Cir. 1980).
[57] See, e.g., In re Virginia Mason Hosp., 357 N.L.R.B. 564, 566 (Aug. 23, 2011) (“The Hospital’s decision to require nonimmunized nurses who opt not to take antiviral medication to wear a facemask plainly affected their working conditions. In addition, work rules enforceable through discipline are mandatory subjects of bargaining[.]”).
[58] 29 U.S.C. § 157.
[59] Id. at § 158(a)(1).
[60] See, e.g., Buelna v. U.S. Dep’t of Homeland Security, 121 M.S.P.R. 262, 270 (June 19, 2004) (“Accordingly, we reaffirm that the appellant’s indefinite suspension deprived him of a property interest cognizable under the Fifth Amendment, and that the agency was required to provide him due process in connection with that action.”); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).
[61] “No person shall be . . . deprived of life, liberty, or property, without due process of law[.]” U.S. CONST. amend V.
[62] See, e.g., Ward v. U.S. Postal Serv., 634 F.3d 1274, 1280 (Fed. Cir. 2011).
[63] 5 U.S.C. § 4303(b)(1).
[64] Hazzard v. Dept’ of Navy, 24 M.S.P.R. 593, 596 (Nov. 4, 1984); see also 5 U.S.C. § 4303(b)(1)(A)(ii).
[65] See 5 U.S.C. § 7101 et seq.
[66] U.S. Dep’t of Homeland Sec. U.S. Citizenship & Immigration Servs., 69 F.L.R.A. 512, 515 (2016).
[67] 5 U.S.C. § 7103(a)(14); see also Am. Federation of Gov’t Employees, AFL-CIO, Local 1929 v. Federal Labor Relations Authority, 961 F.3d 452, 459-61 (D.C. Cir. 2020) (applying “conditions of employment” expansively).
[68] See Yankee Atomic Electr. Co. v. United States, 112 F.3d 1569, 1574 (Fed. Cir. 1997).
[69] Jones v. United States, 1 Ct. Cl. 383, 384 (1865).
[71] See FAR Clause 52.243-4(e).
[72] See 42 U.S.C. § 12112(d)(3)(B); 29 C.F.R. § 1630.14.
[73] See 29 C.F.R. § 825.500(g).
[74] See id.; 29 C.F.R. § 1635.9.
[75] See 45 C.F.R. § 160.103.
[76] See 29 C.F.R. § 1635.8(b)(1)(i).
[77] See 5 U.S.C. § 552a.
[78] https://www.hrsa.gov/cicp/cicp-vicp.
[79] 29 U.S.C. § 655(f).
[80] Asbestos Info. Ass’n/No. Am., 727 F.2d at 421.
[81] Id. at 424.
[83] Yasmeen Abutaleb, et al., CDC urges vaccinated people in covid hot spots to resume wearing masks indoors, washingtonpost.com (July 28, 2021), available at https://www.washingtonpost.com/health/2021/07/27/cdc-masks-guidance-indoors/.
[84] Id.
[85] Mayo Clinic, COVID-19 diagnostic testing (Aug. 3, 2021), available at https://www.mayoclinic.org/tests-procedures/covid-19-diagnostic-test/about/pac-20488900.
[86] Kevin Stankiewicz, Dr. Scott Gottlieb says people who had Covid won’t be immune forever, should get vaccinated, cnbc.com (Sept 1, 2021), available at https://www.cnbc.com/2021/09/01/covid-vaccine-dr-scott-gottlieb-says-people-who-had-covid-wont-be-immune-forever.html.
[87] Frequently Asked Questions about COVID-19 Vaccination, cdc.gov (Updated Sept. 9, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html.
[88] See, e.g., Gade v. Nat’l Solid Wastes Mgmt. Assoc., 505 U.S. 88, 102 (1992) (“Our review of the Act persuades us that Congress sought to promote occupational safety and health while at the same time avoiding duplicative, and possibly counterproductive, regulation. It thus established a system of uniform federal occupational health and safety standards, but gave States the option of pre-empting federal regulations by developing their own occupational safety and health programs.”); https://www.osha.gov/stateplans.
[89] Id.
[90] 29 U.S.C. § 667(c)(2).
[91] Id. at § 666(e).
[92] The criminal penalty can only be imposed for a violation of a specific safety/health rule, not for a violation of the general duty clause. See St. Joe Minerals Corp. v. Occupational Safety and Health Review Comm’n, 647 F.2d 840, 849 n.2 (8th Cir. 1981).
[93] See 29 U.S.C. § 653(b)(4) (“Nothing in this chapter shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.”).
[94] See Coulthurst v. United States, 214 F.3d 106, 110-11 (2d Cir. 2000) (“For the reasons further developed below, we believe that if the inspector failed to perform a diligent inspection out of laziness or was carelessly inattentive, the [Discretionary Function Exception] DFE does not shield the United States from liability.”); see also Irving v. United States, 909 F.2d 598, 605 (5th Cir. 1990), cert. denied, 528 U.S. 812 (1999) (OSHA not necessarily shielded by the DFE because of actions or omissions of inspector).
[95] Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 278 (1990); see also Washington v. Harper, 494 U.S. 210, 229 (1990) (“The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.”).
[96] See U.S. CONST. amend. X.
[97] See, e.g., Jacobson v. Commonwealth of Mass., 25 S. Ct. 358, 367 (1905).
[98] See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175-77 (1803).
[99] See Wen W. Shen, State and Federal Authority to Mandate COVID-19 Vaccination, Congressional Res. Serv., Rpt. No. R46745, at 5 (Apr. 2, 2021), available at https://crsreports.congress.gov/product/pdf/R/R46745.