U of M law professor explains new vaccine mandates

President Joe Biden unveiled wide-reaching vaccine mandates on Thursday, which could affect 100 million Americans.

Under the new plan, COVID-19 vaccines will be required for workers in health care settings that receive Medicare or Medicaid reimbursements. The Centers for Medicare and Medicaid Services will be taking action to implement the mandate, according to the White House.

President Biden also issued executive orders to mandate vaccines for executive branch employees and federal contractors.

Additionally, he asked the Occupational Safety and Health Administration (OSHA) to create a rule that will require all employers with 100 or more employees to mandate vaccines or produce negative COVID tests each week.

“The constitutional authority for this is Congress has the power to regulate interstate commerce and, all these companies, they’re selling things across state,” said Jill Hasday, a distinguished McKnight University professor and Centennial Professor of Law at the University of Minnesota Law School. "Congress wants to protect healthy and safe workplaces […] OSHA decides what that is, Biden is basically directing OSHA to investigate what would be a healthy and safe workplace. In this context, and not surprisingly, vaccination would go a long way to creating a healthy and safe workplace.”

Hasday said the president also has the authority to set the terms for federal contractors.

“There’s long history of establishing rules for federal contractors,” she said. “It’s often a way of the federal government to indicate what they consider best practices […] the expectation is that will trickle down and spread through the greater society.”

Executive branch employees and federal contractors won’t have the option to take weekly tests, they must get the vaccine, with certain exemptions.

“You have a disability claim under the American Disability Act, meaning that you have a disability that’s preventing you from getting vaccinated. […] You have to have a connection between disability and why you can’t get vaccinated,” Hasday said. “Then you’re entitled to reasonable accommodation, which could be, for instance, working at home. And then the question is whether that imposes an undue burden on the employer and that would have to be worked out. That’s supposed to be an individual negotiation if you can’t if you can’t resolve it, you go to court, but that’s case by case.”

Employees can also qualify for religious exemptions.

“You only get that if there’s some conflict between your religion and the employer’s requirement," Hasday said. "The employer only has to accommodate your religious practice, if it would impose no more than de minimis burden. De minimis means minimal, trivial, very small.”

According to Hasday, most Americans won’t qualify for either exception, which means there are few options for employees other than vaccination.

“One of the consequences of at-will employment is if the employer imposes a legal requirement, you have to either comply or get a new job,” Hasday said. “There’s no alternative.”

She also said it’s unlikely there will be a successful challenge to the new mandates.

“I don’t predict the future so time will tell,” she said. “Courts have a long history of upholding vaccination requirements.”