Is President Biden’s Vaccine Mandate Constitutional?

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Sep. 10 2021, Published 10:04 a.m. ET

After beating around the bush with ad-hoc COVID-19 vaccine mandates, President Biden has decided to get serious. He announced on Sep. 9 that any company with at least 100 employees must do one of two things: mandate vaccines or administer weekly tests for all employees.

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This is a big deal, considering it could impact 100 million workers (plus all of the people they come into contact with). Is Biden's latest, most sweeping mandate constitutional, or will it falter under pressure stemming mostly from the GOP?

The logistics of Biden's new vaccine mandate

Following recent surges of the COVID-19 Delta variant throughout the U.S., Biden took the stage to discuss a new method the administration will be employing. He's now requiring that any company with 100 or more employees gets vaccinated.

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While government employees don't have the option to administer weekly tests as an alternative, the public sector does. However, regular testing can be inefficient, clunky, and costly over time. For Biden, that's exactly the point.

Businesses can be fined for noncompliance

Biden says the government could fine businesses that don't comply, up to $14,000 per violation. The large businesses impacted by the new rule will also have to provide PTO (paid time off) for employees to get vaccinated—even if an employee doesn't normally get PTO.

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Biden is pairing this mandate with other implementations, such as increasing the availability of free COVID-19 tests in schools across the country. In Aug. 2021, nearly 30,000 children were hospitalized for COVID-19 symptoms, the highest number of child hospitalizations to date.

Meanwhile, the word on booster shots remains unclear. Availability may be around the corner, but the World Health Organization wants wealthier countries to give developing nations the chance to catch up first.

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Some businesses (and workers) are refusing to comply

Biden has made it clear that this mandate comes only after significant efforts to drive the vaccine rate up in the U.S. Those efforts have been met by a lot of contention among business owners and workers.

"This has become so politicized that people can’t see the value of a vaccination that can save their lives. Our own divisions are preventing us from ending a pandemic," Dr. Joshua Sharfstein, vice dean at the Johns Hopkins Bloomberg School of Public Health in Baltimore, told reporters at the Associated Press.

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Notably, Disney-owned ESPN requires vaccination for all employees, and ESPN reporter Allison Williams quit as a result.

Is the private sector vaccine mandate constitutional?

The Republican National Committee has already announced it's suing Biden over the vaccine mandate. However, employers are legally allowed to mandate vaccines. That's why the administration first stepped in to mandate vaccines for government workers—because it employs them.

As for the private sector, experts say that the mandate will most likely hold up to inevitable legal challenges. This is because the state of vaccinations in the U.S. impacts worker's wellbeing, and the government's OHSA (Occupational Safety and Health Administration) has authority over that issue. Additionally, given that Biden is providing testing as an alternative, employers technically have a way out.

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