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Experts in public health law: the federal mandate on vaccines has a solid legal basis

President Joe Biden’s mandate on the coronavirus vaccine for workplaces with more than 100 people on the payroll is anchored in existing law governing worker protection, said a trio of labor law experts. public health.

As long as the warrant allows exemptions for religious, medical or disability reasons, it should survive legal challenges, experts from three Catholic law schools told Catholic News Service.

“He is absolutely within his powers,” said Lawrence O. Gostin, professor of global health law at Georgetown University Law Center. “He’s used very limited but clear powers in all the things he’s trying to do (to control the spread of the coronavirus).”

Elizabeth Pendo, a law professor at the University of St. Louis law school, said the federal government “has the power to make rules to keep workers safe.”

“The Occupational Safety and Health Administration is responsible for ensuring the safety of workers. That’s where the authority comes from,” Pendo said.

OSHA was created to meet the requirements of the Occupational Safety and Health Act 1970. The act protects employees from known hazards in the workplace, such as toxic chemicals and frayed threads. The rule would last six months and would then have to be replaced by a permanent directive.

Biden announced the vaccine’s mandate on September 9. It included an alternative to vaccination: weekly coronavirus tests. This would affect 80 million workers across the country.

The Biden plan extends beyond businesses. He calls on all employees of health facilities that accept Medicare and Medicaid reimbursements to get vaccinated. It also applies to all federal employees, Head Start staff, Department of Defense schools, and schools operated by the Bureau of Indian Education for Native Americans.

Mercy Sister Mary Haddad, president and CEO of the Catholic Health Association of the United States, has expressed support for Biden’s decision to require the vaccination of staff in Medicare and Medicaid-certified health facilities.

In a September 9 statement in the wake of Biden’s announcement, Sister Haddad said many CHA members already need the vaccines, “recognizing that they are needed to protect patients, their staff and the whole community against the virus “.

“The CHA and our members are committed to promoting the common good and believe that obtaining the COVID-19 vaccine is part of our moral obligation to take care of each other,” she said.

Under the Constitution, state and local governments have greater powers to protect citizens, including by making vaccines mandatory. Vaccines against smallpox, polio, chickenpox, measles, mumps, rubella, diphtheria, tetanus, pertussis and hepatitis B are common.

OSHA officials are drafting rules regarding the Biden tenure. They should be released in the coming weeks.

As long as OSHA’s rules include medical and religious exemptions, they should survive any legal test, said Jennifer Oliva, director of the Center for Health and Pharmaceutical Law at Seton Hall University School of Law.

Such exemptions are protected by the Federal Civil Rights Act of 1964, which requires employers to make reasonable accommodations for employees who object to job demands because of “genuine” religious beliefs.

Even before Biden announced the vaccine mandate, private sector employers of all sizes began demanding that workers be vaccinated against COVID-19. Others have joined since the president’s announcement.

As such workplace mandates came in even before Biden’s announcement, employees in the private and public sectors have increasingly called for immunization exemptions, citing religious belief.

It is still unclear how the tenure will play out in large religious and nonprofit organizations. Legal experts said they believed the mandate would apply as long as the exemptions were in place.

As an employer of more than 100 people, the United States Conference of Catholic Bishops would fall under the vaccination mandate or weekly testing requirement. USCCB spokesperson Chieko Noguchi declined to comment on the Biden plan.

Dominican sister Donna Markham, president and CEO of Catholic Charities USA, told CNS that the mandate would not impact its operations because virtually all staff based in Alexandria, Va., Have voluntarily received vaccines.

Despite the strong legal footing, public health experts have said they expect lawsuits challenging the warrant will be filed.

“A lot of Republicans said it was an overshoot and it was unconstitutional,” Gostin said. He called any legal action that could challenge a vaccination warrant as “frivolous” and “totally unjustified”.

“The courts, if they respect the rule of law, they should strike it down,” he said.

Gostin added that religious employers can oppose a vaccine mandate, citing religious freedom, as they have done regarding health insurance coverage for contraceptives and abortion under the law. on affordable care.

“It is possible that the Supreme Court will intervene, but it seems to me that this (pandemic) is totally different from abortion,” Gostin said.

Oliva said any legal challenges will likely depend on OSHA rules.

“What helps the federal government here is the fact that they allow testing as an alternative and you didn’t need to get vaccinated. That’s what we would consider less burdensome,” Oliva explained. .

As of early September 16, about 74.2% of all Americans aged 12 and over, or more than 210.4 million people, had received at least one dose of a vaccine. The number of fully vaccinated people aged 12 and over had reached 179.9 million, or 63.5% of the population.