Amid Union Pushback, Biden’s COVID-19 Vaccine Rules Face Legal Challenge Over Coercion

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President Joe Biden touts the support of the business community for his COVID-19 vaccine policy, but leaders of organized labor, which the president identifies as his political base, aren’t happy. 

Requirements that both federal employees and the employees of federal contractors “attest” to their vaccination status and regularly submit to testing if not vaccinated could face a court challenge, based on the Biden administration’s own employment guidelines.

The U.S. government includes about 2.1 million employees and is assisted by more than 4 million contract employees. 

Larry Cosme, president of the Federal Law Enforcement Officers Association, said in a formal statement: “Forcing people to undertake a medical procedure is not the American way and is a clear civil rights violation no matter how proponents may seek to justify it.”

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The American Postal Workers Union also issued a statement, saying “it is not the role of the federal government to mandate vaccinations for the employees we represent.” 

With such criticism amid a surge in the delta variant of COVID-19, Biden is getting a taste of the sort of scrutiny that his predecessor, President Donald Trump, endured last year as Biden and other political opponents questioned his administration’s efforts to contain and develop vaccines for the coronavirus that causes the disease.

As with most issues, one legal opinion doesn’t settle a matter, noted Doug Badger, a senior fellow in domestic policy studies at The Heritage Foundation, parent organization of The Daily Signal. 

“There are legal questions the unions will likely raise,” Badger told The Daily Signal in a phone interview. “The EEOC warned against coercion. The Justice Department believes [vaccination] mandates are legal. But this might be something courts have to sort out.”

The Equal Employment Opportunity Commission issued guidelines in May warning all employers against forcing their employees to get vaccinated against COVID-19

“Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive,” the EEOC guidelines say. “Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.”

The guidelines also say that federal laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.” 

The Justice Department issued a separate opinion July 6 on the question of a lack of full approval of the vaccine by the Food and Drug Administration. 

The Justice Department has reviewed whether the government could require the public to get a vaccine that only has emergency approval by the FDA. Full approval would give the government more authority to impose mandates.

“We conclude that section 564 of the FDCA [Food, Drug, and Cosmetic Act] does not prohibit public or private entities from imposing vaccination requirements,” wrote Dawn Johnsen, acting assistant attorney general of the Office of Legal Counsel, in the 18-page opinion. 

As of Thursday, 57.7% of eligible Americans were fully vaccinated, according to the Centers for Disease Control and Prevention. That’s a total of 163.9 million Americans. 

Biden announced that day that any federal employee not vaccinated must “attest” to their status and be regularly tested for COVID-19. Under Biden’s plan, the Defense Department is imposing a full vaccination mandate on those serving in the military. 

Although the president can’t impose a mandate on the private sector, he announced that the federal government will reimburse small- and medium-size businesses that give paid leave to employees and their families to go get vaccinated. 

During remarks Thursday in the East Room of the White House, the president—who frequently touts his credentials with labor unions—boasted about support from groups that represent large corporations. 

“Look at the Chamber of Commerce representing tens of thousands of American businesses, the National Association of Manufacturers, the Business Roundtable, which is comprised of the largest and biggest corporations in America,” Biden said. “They’re all applauding the actions the federal government is taking, and I urge them to follow suit.”

The umbrella organization for federal employee unions, the American Federation of Government Employees, gave a measured—though skeptical—response to the new Biden administration policy. 

“We expect that the particulars of any changes to working conditions, including those related to COVID-19 vaccines and associated protocols, be properly negotiated with our bargaining units prior to implementation,” AFGE President Everett Kelley said Thursday in a written statement, adding

Based on today’s announcement, it is our understanding that under President Biden’s proposal the vast majority of federal employees would not have to be vaccinated as a condition of employment, but that those who choose not to receive the vaccine may face certain restrictions.

While we await specific proposals and anticipate the negotiation process, we encourage all of our members who are able to take advantage of the opportunity to get vaccinated and help our nation put an end to this deadly pandemic.

Not all union leaders are skeptical. 

“We’ve got over 600,000 people dead as a result of this epidemic, and these vaccinations have been proven to be safe,” Paul Shearon, president of the International Federation of Professional and Technical Engineers, told Bloomberg News. “Their right not to have a vaccination ends when their illness puts our people at risk.”

That union represents federal immigration judges, NASA employees, and Navy shipyard workers.

The Biden administration didn’t anticipate the level of vaccine hesitancy across the nation and immediately acted in a confrontational manner, Heritage’s Badger said.

“The administration continues to try to encourage people to get vaccinated by smearing the unvaccinated,” Badger said. “This hasn’t proved successful. They may try to be more coercive. That may only be more successful on the margins.”

A better method would be to remove politics from the process, he said. 

“Instead of attacking the unvaccinated or attacking social media, they could say, ‘Instead of looking at Twitter and Facebook, talk to your doctor,’” Badger said. “They should take themselves out of it.”

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