Biden Weighs Vaccine Mandate for the Federal Workforce

Federal law does not prohibit public and private entities from mandating coronavirus vaccines, even though those vaccines do not yet have full authorization from the Food and Drug Administration, according to a legal opinion from the Justice Department posted on Monday. 

Before the opinion was issued, many believed that the vaccines could not be required because thus far they have received only emergency use authorization from the FDA. With the spread of the Delta variant and breakthrough coronavirus infections, there is concern about how much longer it will take for the FDA to give full approval to the Pfizer/BioNTech and Moderna vaccines (Johnson & Johnson has not yet applied for full approval). 

The opinion, from the Office of Legal Counsel and dated July 6, says section 564 of the Food, Drug and Cosmetic Act, which gives the FDA authorization to issue emergency use authorizations for medical products, such as vaccines, “does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.”

The law “specifies only that certain information be provided to potential vaccine recipients and does not prohibit entities from imposing vaccination requirements.”

The Equal Employment Opportunity Commission issued updated guidance in May saying that employers may require their employees to get vaccinated, as long as they comply with the Americans with Disabilities Act, Civil Rights Act and other EEO considerations. However, the agency said it “is beyond the EEOC’s jurisdiction to discuss the legal implications of [emergency use authorizations] or the FDA approach.” 

The OLC opinion is a reversal from the Trump administration’s position under former Attorney General William Barr, who “used the Justice Department's legal power to try to fight certain COVID restrictions, including joining some businesses that sought to overturn state mask mandates,” CNN pointed out. 

On Monday, the Veterans Affairs Department announced it is mandating vaccines for health care employees, the first federal agency to issue any sort of requirement. California and New York City also will require vaccines for certain government workers and various colleges have issued vaccine requirements for students returning to campus this fall.   

President Biden, taking shouted questions from the White House press corps on Tuesday afternoon, said a vaccine mandate for the federal workforce is under consideration, according to the White House pool report. CNN and PBS NewsHour reported late Tuesday that Biden would announce on Thursday that all federal employees and contractors would be required to receive a vaccine or undergo frequent testing for COVID-19.

Before the OLC opinion was posted, there was much debate about the legality of vaccine requirements. James Hodge, director of the Center for Public Health Law and Policy at Arizona State University, told VOA News earlier this month: “Who could the federal government tell directly you must be vaccinated? Federal employees, federal contractors, anybody doing business with the federal government.” 

Nonetheless, the Biden administration’s Safer Federal Employees Task Force previously said in June guidance that vaccines “generally” shouldn’t be a precondition for federal employees or contractors working on site. 

“This legal opinion is consistent with the prediction in our spring article that by year’s end, the federal government could mandate that federal contractor employees obtain vaccinations as a condition of their continued work on federal contracts,” Albert Krachman, a partner for government contracts at the law firm Blank Rome LLP, told Government Executive, in reference to an article he wrote in March with Brooke Iley, a partner for labor and employment law at the firm. 

The new legal opinion, along with the quickly spreading Delta variant and increase in hospitalizations suggest there could be “some form of federal contractor vaccine mandate sooner rather than later,” he said. 

“It’s also significant that the opinion informs the administration that if the president signs a waiver, the Department of Defense can mandate vaccines for DoD employees,” Krachman said. “We believe there is a reasonable likelihood that the President will sign the waiver, and the DoD waiver would very likely trigger some form of DoD contractor vaccine mandate.”

A Defense spokesperson told Government Executive on Tuesday there are no changes to the department’s vaccination policy at this time. The department did release on Tuesday updated coronavirus testing guidance. 

During the White House briefing on Tuesday, White House Press Secretary Jen Psaki said that while the federal government’s role is not to mandate vaccines nationwide, it’s “different” for the federal workforce. “As a big employer, the federal government, it also has a responsibility to continue to look at ways that we can protect people and save lives and so we will continue to look, agencies will continue to look, we will continue to look at what steps we need to take for our workforce,” she said. 

When asked if there could be more federal agency mandates coming, Psaki said, “I think a range of agencies and leaders will look at what steps they should take to protect their workforces and save lives.” (The briefing occurred before the president’s remark). 

The news about the legal opinion comes a week after agencies had to submit reentry and post-reentry plans to the Office of Management and Budget. On Friday night, the Office of Personnel Management issued updated guidance on telework and other considerations as federal agencies bring employees back to worksites. 

Separately, the Centers for Disease Control and Prevention issued updated mask guidance on Tuesday, reversing its position from a few months ago. CDC Director Dr. Rochelle Walensky said on a press call that regardless of vaccination status, individuals in schools and those in areas with “high” or “substantial” coronavirus transmission, as outlined on the CDC’s website, should wear masks.  According to the most recent data online, 63% of the counties in the United States have a “high” or “substantial” transmission level. 

It is unclear so far  how the updated mask guidance will affect the reentry process for federal employees.