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Biden announces vaccine, testing mandates for large companies, health care workers

UPDATED: Fri., Sept. 10, 2021

President Joe Biden speaks Thursday in the State Dining Room at the White House.  (Andrew Harnik)
President Joe Biden speaks Thursday in the State Dining Room at the White House. (Andrew Harnik)
By Kip Hill Emma Epperly and Orion Donovan-Smith The Spokesman-Review

WASHINGTON – President Joe Biden on Thursday announced a set of aggressive measures aimed at beating back a nationwide surge in coronavirus cases driven by the highly infectious delta variant, including new federal vaccine and testing requirements for large companies and health care workers.

The president announced the steps as part of a sweeping plan that includes efforts to encourage mask wearing, increase economic support for small businesses and make free COVID-19 tests and treatments more widely available.

Appealing directly to the roughly 80 million Americans who aren’t yet inoculated, Biden urged them to take advantage of the “safe, effective and free” shots to help end what he called “a pandemic of the unvaccinated.”

“This is not about freedom or personal choice,” Biden said from the White House. “It’s about protecting yourself and those around you – the people you work with, people you care about, people you love.”

“We’ve been patient, but our patience is wearing thin, and your refusal has cost all of us,” the president said.

The United States recorded an average of more than 136,000 new COVID-19 cases a day over the week leading up to Wednesday, a more than tenfold increase from mid-June, according to data from the Centers for Disease Control and Prevention. An average of more than 1,000 Americans died from the virus each day over the past week, up from fewer than 200 deaths per day in early July.

An emergency Labor Department rule will mandate companies with at least 100 employees to require all workers to either get vaccinated or take weekly COVID-19 tests, and require employers to give paid time off to get the shot.

A separate vaccine mandate will apply to all health care workers whose employers receive federal funding through Medicare and Medicaid. Federal employees and contractors, who until now have had the option of weekly testing in lieu of vaccination, will now be required to get a shot.

In total, the White House says the requirements will apply to some 100 million workers, or about two-thirds of the American workforce.

Criticism from congressional Republicans started to pour in even before Biden announced the plan, with Rep. Cathy McMorris Rodgers of Spokane calling the requirements “unacceptable and not the American way.”

“President Biden continues to undermine confidence in safe and effective vaccines,” McMorris Rodgers said in a statement. “This pandemic will never end if the American people aren’t trusted or given the information they need to assess risks and make the best decisions for themselves and their families. Perhaps to the authoritarian Biden-Harris administration, that’s exactly the point so they can hold onto their pandemic powers forever.”

Rep. Dan Newhouse, R-Sunnyside, echoed similar themes in a statement of his own.

“President Biden’s plan to ‘fight the spread’ of COVID-19 is more about government control than science,” Newhouse said. “Government should never be in the business of dictating how private industry operates. It’s time for our President to start trusting the American people and give them the information they need to make the right decisions for themselves.”

Sen. Mike Crapo, R-Idaho, criticized Biden’s mandates but emphasized the importance of the coronavirus vaccines that were developed with the help of Operation Warp Speed, a Trump administration program that sped up vaccine distribution without skipping required testing.

“Vaccines have historically proven to be vital to the public health goal of disease prevention,” Crapo said in a statement. “We had record vaccine development, thanks to American medical ingenuity and Operation Warp Speed. However, a one-size-fits-all federal mandate on vaccines and private business practices is not a reasonable solution now – or ever. Medical decisions are best left to patients and their doctors.”

Biden pointed out numerous major companies have already opted to require vaccines or regular testing, citing the examples of United Airlines, Tyson Foods and Disney. “Even Fox News” is requiring its workers to get inoculated or show negative test results, he said, naming the conservative network in a clear effort to bridge the partisan divide over workplace vaccine mandates.

The president took aim at GOP governors in several states who have threatened to defund school districts that require mask wearing. The Education Department, he said, will replace the pay of any teachers and local school officials who are punished for implementing a mask mandate.

“Talk about bullying in schools,” Biden said. “If these governors won’t help us beat the pandemic, I’ll use my power as president and get them out of the way.”

In May, Idaho Gov. Brad Little rescinded an executive order banning school mask requirements – signed by Lt. Gov. Janice McGeachin when Little, her fellow Republican, was out of the state – calling it an “abuse of power.” But Little took to Twitter on Thursday to decry Biden’s remarks.

“Today’s actions from President Biden amount to government overreach,” Little wrote. “Government should stay out of decisions involving employers and their employees as much as possible. I’ve advocated for and championed fewer government regulations and mandates on business.”

In a subsequent tweet, Little urged Idahoans to “choose safe and effective ways to protect themselves from COVID-19 for the continued health and prosperity of the people of Idaho,” without mentioning vaccines.

While seemingly trying to strike a conciliatory tone, Biden didn’t shy away from criticizing the GOP politicians who have opposed vaccine requirements – and in some cases opposed vaccination altogether.

“What makes it incredibly more frustrating is that we have the tools to combat COVID-19,” he said, “and a distinct minority of Americans – supported by a distinct minority of elected officials – are keeping us from turning the corner.”

Sen. Patty Murray, a Washington Democrat who chairs the Senate’s Health Committee, said in a statement Biden’s plan “will be critical to help us save lives, continue economic recovery, and stop COVID-19 from spreading among the unvaccinated or mutating into dangerous new variants like Delta.”

“I’ve been supportive of state, local, and private efforts to increase COVID-19 vaccination rates, including at schools and workplaces, and I’m glad President Biden is doing more on this front as well,” Murray said. “Getting people vaccinated is one of the most important things we can do to stop COVID-19. We have several safe, effective vaccines – including the Pfizer vaccine which is now fully approved – and it’s critical we make sure everyone who is able to gets them.”

Under the new requirements, Inland Northwest businesses with more than 100 employees must ensure their employees are vaccinated. For those workers who resist, they will be tested weekly as an alternative.

“The health and safety of our employees and communities remains a priority for Avista,” Casey Fielder, a spokesman for the company that provides electricity for much of the Spokane area, said in a statement. Avista employs more than 1,800 people and will be subject to the new rule.

“We will review the federal rule once it’s available and will evaluate what this means for us as an employer,” Fielder said. “As we have throughout the pandemic, we will also consider the rules and guidelines as they are implemented by state and local agencies.”

Almost all of the employees at Spiceology, a spice and seasoning company in Spokane Valley, are already vaccinated, said President and CEO Chip Overstreet. He estimated 95% of the company’s 130 employees had received the shot. The company does have a “handful” of current employees who “for a variety of reasons have chosen not to get vaccinated,” he said, and plans to offer them the option of weekly testing.

More than half of the approximately 740 employees at the Spokane Teachers Credit Union say they’re vaccinated, spokesman Dan Hansen said. The credit union asked all employees working on site to attest to being vaccinated or wear a mask, however half of all employees are still working from home, Hansen said.

The White House has not said whether the Labor Department rule will require proof of vaccination or if employees will simply need to attest that they have been vaccinated.

Local legal experts said Biden’s vaccine mandate for businesses is sure to be challenged in court, but it’s likely to survive that litigation.

“It’s a safe bet we’ll see legal challenges to the mandate,” said Richard Seamon, a professor at the University of Idaho School of Law.

“I’m sure there will be challenges,” University of Washington law professor Hugh Spitzer agreed, but he added, “I don’t think they’ll get anywhere.”

The courts have granted the government wide authority to regulate businesses that are engaged in commerce across state lines, and Biden’s order is tailored to do that, Spitzer said. He pointed to the provision that the mandate applies to businesses that have more than 100 employees.

Challengers might argue the Occupational Safety and Health Administration, the division of the Labor Department the president directed to mandate the vaccine from employees, doesn’t have the authority to regulate hazards that occur outside the workplace, he said. Others may argue a violation of individual rights.

The latter argument has been made in courts this summer. A Texas federal judge appointed by Ronald Reagan shot down an argument from employees at a Houston hospital that their rights were violated by an employer requiring the shots to continue employment.

That ruling had its basis in a 116-year-old Supreme Court opinion finding that mandatory vaccines were an appropriate use of the government’s policing power. In that case, a man lost his challenge of a Cambridge, Massachusetts, order requiring smallpox vaccination.

Any challenge would likely be decided in a higher court, Seamon said.

“Because the court has weighed in on it, the lower courts aren’t going to try to break new territory on this,” he said.

The other argument, that OSHA lacks authority to require vaccination, may prove more fruitful, Seamon said. Though he noted the courts have given the agency broad authority to regulate workplace safety in recent rulings.

“What’s odd about it is that COVID is not unique to the workplace,” he said. “What makes this kind of unprecedented – I think it’s literally unprecedented – is that it addresses a hazard that doesn’t arise out of a workplace setting, specifically.”

Such an argument may also question what other kinds of requirements the agency may be asked to enforce to ensure the safety of workers that extend off-the-job, Seamon said.

“The other thing that I think plaintiffs challenging these kinds of mandates would make is, if OSHA can do this, what else can it do?” Seamon said.

“Can it make people take Vitamin C during the flu season? Can it require people to exercise to protect their backs? How far can the government go?”

Spitzer said he didn’t believe such arguments would sway federal judges. He pointed to the imposition of smoking bans in certain businesses by the Department of Labor.

“One of the things that was clear was that state and local governments could regulate workplaces, where waiters and waitresses could be injured by the smoke, or flight attendants on planes,” Spitzer said.

Orion Donovan-Smith's reporting for The Spokesman-Review is funded in part by Report for America and by members of the Spokane community. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper’s managing editor.

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