Are Vaccine Mandates Legal?

As the COVID-19 pandemic continues to dominate the global stage, vaccine mandates have become the topic of conversation. Italy mandated all workers to either show proof of vaccination, a negative test or recent recovery from infection, effective October 15. Several other countries have mandated vaccines for various categories of health care workers. Most recently, President Biden announced that the U.S. would mandate vaccines for all federal employees and for businesses with more than 100 workers. 

Biden’s announcement appeared to put people into two camps: some are applauding it as a much needed step forward, while others saying they won’t comply, even if it costs them their job (#IWillNotComply trended on Twitter after Biden’s announcement). So, what should Christians do about this? What camp do we fall into? 

This article has three parts: the legality of vaccine mandates, religious exemptions and what the Bible has to say about all this. 

Disclaimer: this series is meant to be informational. Please do not try to convince me of why your viewpoint is correct if you disagree with a viewpoint written here. 

PART ONE: Are vaccine mandates legal?

First, let’s talk about vaccine mandates in general and Biden’s executive order. If you follow me on social media, you know I’m passionate about breaking down current events and new laws in an easy to understand, unbiased way. There is a lot of fake information circulating on social media, and most of it is biased towards either one side or the author, so I want you to have a general understanding of how vaccine mandates work (at least in the U.S.), and whether/if Biden has the authority to do this.

Generally, vaccine mandates are not unconstitutional. In 1905, the Supreme Court (the highest court in the land that ultimately determines the constitutionality of laws), upheld a local health board’s decision to mandate smallpox vaccinations in a case called Jacobson v. Massachusetts. Additionally, most states require children to receive a long list of vaccines (for example, vaccines against polio, hepatitis B, measles, mumps, tetanus, meningitis, etc.) in order to attend public school and/or college. Exemption options are generally available, and we’ll talk about those in part II.  

Where is President Biden getting the authority to do this?

This COVID-19 vaccine mandate comes from an executive order, which is a signed, written, and published directive from the U.S president on operations of the federal government. Executive orders are not legislation and Congress can’t overturn them (only a sitting U.S president may overturn an existing executive order by issuing a new order). So, by signing this executive order, Biden is telling his government (in this case, the Department of Labor) to issue regulations to carry out a policy. 

Technically, the Labor Department can only act pursuant to a law passed by Congress. However in this case, Biden is relying on an existing law to give the Labor Department authority to do this: the Occupational Safety and Health Act of 1970. A little-used provision in this law authorizes the Department of Labor’s Occupational Safety and Health Administration (OSHA) to implement emergency rules when “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”

This is known as an emergency temporary standard (that’s why the news is referring to Biden’s mandate as an “ETS”). Because an ETS skips the formal notice and comment process that is generally required for OSHA regulations, it is only effective for six months. During this time, the Labor Department is required to solicit public comments and may finalize the ETS as a permanent standard. This process generally averages seven years. 

ETS has only been used nine times in the last 50 years, and six of those times, it was challenged in court. Out of those six times, ETS was upheld as valid only once and the others were blocked, stayed or vacated. In the legal world, a stay is to stop court proceedings, usually until a party to the case complies with a court order or procedure. To vacate a court order or judgment is to cancel it or render it null and void - this is usually a procedural issue. Basically, those orders don’t make a determination on the merits of the case but are often more procedural in nature, so we can’t really conclude that the ETSs in those cases were determined to be legit or not.

The last time ETS was used prior to COVID-19 pandemic was in 1983 when President Reagan tried to reduce the amount of workers exposed to asbestos. Although the ETS was eventually struck down by a court of appeals, it was on narrow grounds (the court said that OSHA failed to consider alternative rules like requiring worker respirators) and not because OSHA didn’t have the authority to issue a vaccine mandate. 

Challenging the COVID-19 vaccine mandate ETS

Since Biden’s announcement, several Republican governors and other interested groups have indicated they plan to sue, so once OSHA actually issues this vaccine mandate as an ETS, expect this issue to go to court. Courts are likely to issue a stay order during a court challenge to this process. If that happens, compliance will not be required until lawsuits are finally resolved. Due to the nature of this issue, it could make it all the way up to the Supreme Court. However, in the meantime, some employers may choose to still follow the mandate if they want to, even during an ongoing court challenge.

Here are potential legal arguments that could be made in court against the vaccine mandate ETS:

• It’s been months since vaccines became widely available, so it could be difficult for OSHA to explain why there is a grave danger now, when there wasn’t one earlier this year (this argument is based on the Biden administration proving that there is a (1) grave danger and (2) this vaccine mandate standard is necessary to solve the grave danger - but, “grave danger” isn’t defined in this law, so it’s a gray area for courts to interpret on a case by case basis based on other case law)

• A court could find that the 100-employee threshold is arbitrary

• An argument could be made that grave danger doesn’t exist on a national level -  COVID-19 cases spike at state and regional levels, so to declare a need for a national mandate could be a stretch to qualify for this ETS option

• It’s not constitutional to mandate vaccines (but hard to make this argument since, at least for the 100-employee mandate, since there is a proposed option to opt out of the COVID-19 vaccine by getting tested weekly + we have case law that has found other vaccine mandates constitutional)

Note, OHSA also implemented ETS in June to address COVID-19 in healthcare. Two labor unions took that ETS order to court and the case is currently ongoing. The healthcare ETS is a separate ETS from the one Biden wants the Labor Department to issue for federal worker/contractors and large employers.

So, in short, yes, ETS and vaccine mandates can be legal in certain circumstances, but will the COVID-19 vaccine mandate ETS survive a court challenge? To be determined because it will definitely be litigated!

Read Part II on how religious exemptions work for vaccines & Part III to see what the Bible has to say about all of this!