By Katie Rogers and Sheryl Gay Stolberg, The New York Times
WASHINGTON — President Joe Biden on Thursday used the full force of his presidency to push two-thirds of U.S. workers to be vaccinated against the coronavirus, reaching into the private sector to mandate that all companies with more than 100 workers require vaccination or weekly testing.
Biden also moved to mandate shots for health care workers, federal contractors and the vast majority of federal workers, who could face disciplinary measures if they refuse.
The sweeping actions, which the president announced in a White House speech, are the most expansive he has taken to control the pandemic and will affect almost every aspect of society. They also reflect Biden’s deep frustration with the roughly 80 million Americans who are eligible for shots but have not gotten them.
“We’ve been patient,” Biden said in a sharp message to those who refuse to be vaccinated. “But our patience is wearing thin. And your refusal has cost all of us.”
Initially reluctant to enact mandates, Biden is moving more aggressively than any other president in modern history to require vaccination, experts say. In his remarks, he promised to “protect vaccinated workers from the unvaccinated.”
“We can and we will turn the tide on COVID-19,” he said.
Even so, Biden conceded that the mandates would take time to “have full impact.” They are also all but certain to be the subject of legal challenges; already, the largest union representing federal workers has raised questions. It is unclear how many workers subject to the new mandates have already been vaccinated.
Biden is acting through a combination of executive orders and new federal rules. Under his plan, private sector businesses that have 100 or more employees will have to require vaccination or mandatory weekly testing after the Occupational Safety and Health Administration drafts a rule. Roughly 17 million health care workers employed by hospitals and other institutions that accept Medicare and Medicaid reimbursement will also face strict new vaccination requirements, as will federal contractors and most federal workers.
Experts say Biden has the legal authority to impose vaccine requirements on the private sector through laws that require businesses to comply with evidence-based federal health safety standards. OSHA, which enforces workplace safety, has already imposed other pandemic precautions, such as a rule in June requiring health care employers to provide protective equipment and adequate ventilation and ensure social distancing, among other measures. Robert I. Field, a law professor at Drexel University, said OSHA had the authority to protect workers’ safety, keeping them from being exposed to a potentially deadly virus by requiring vaccinations.
Lawrence O. Gostin, a Georgetown University law professor who specializes in public health, added, “The president’s plan is bold, audacious and unprecedented. But I do think it’s entirely lawful. He’s on extremely strong legal ground.”
The moves, which Biden said would cover 100 million people, are part of a broader White House effort to curb the pandemic, which began to spin out of control in July even as Biden and his top aides were forecasting a “summer of joy” and declaring independence from the virus. Since then, the highly infectious delta variant has spread rapidly, fueling a spike in cases and deaths.
Also on Thursday, Biden ordered mandatory vaccination for nearly 300,000 educators in the federal Head Start Program and at more than 200 federally run schools. He announced that he would use the Defense Production Act to increase production of rapid testing kits and would work with retailers, including Amazon and Walmart, to expand their availability. And he said the Transportation Security Administration would double fines on passengers who refuse to wear masks.
“If you break the rules, be prepared to pay — and by the way, show some respect,” Biden said, in a salty reference to angry airline passengers who refuse to mask up. “The anger you see on television toward flight attendants and others doing their jobs is wrong. It’s ugly.”
Experts say vaccine mandates are highly effective at preventing the spread of infectious disease; that is why schools require vaccination against measles, mumps and other childhood ailments. Since the announcement Aug. 25 that the Pentagon would require active duty military personnel to be vaccinated against COVID-19, the percentage of military members with at least one shot rose to 82.96% from 76.22%, according to Pentagon data.
But Biden is unveiling his plan in a deeply polarized environment around COVID-19 vaccination, and experts seemed split on how effective it will be.
Dr. Georges C. Benjamin, executive director of the American Public Health Association, said the actions might be “too little, too late,” and warned that Americans opposed to vaccination might dig in and bristle at being told what to do. The American Hospital Association was cautious, warning that the moves “may result in exacerbating the severe workforce shortage problems that currently exist.”
But Dr. William Schaffner, an infectious disease expert at Vanderbilt University, said the policy was necessary and likened it to military service in a time of war.
“To date we have relied on a volunteer army,” Schaffner said. “But particularly with the delta variant, the enemy has been reinforced, and now a volunteer army is not sufficient. We need to institute a draft.”
Slightly more than half of Americans, 53%, are fully vaccinated. The number of people seeking shots ticked up considerably in August, as delta pushed the country’s daily average caseload over 150,000 for the first time since late January, overwhelming hospitals in hard-hit areas and killing roughly 1,500 people a day.
But the vaccination rate has yet to help the nation cross the threshold of “herd immunity” — the tipping point that occurs when widespread vaccination, coupled with natural immunity, slows the spread of a virus. If it continues to spread, officials fear that it will mutate into another, even more dangerous variant that could evade vaccines.
“When you have 75 to 80 million people who are eligible to be vaccinated, who don’t get vaccinated, you’re going to have a dynamic of continual smoldering spread of the infection,” Biden’s top medical adviser for the coronavirus pandemic, Dr. Anthony Fauci, warned in an interview, adding, “It’s very frustrating, because we have the wherewithal within our power to be able to actually suppress it.”
The mandate for federal workers is an especially assertive move by the president. White House press secretary Jen Psaki told reporters Thursday that, aside from some religious and disability exemptions, most would be subject to a 75-day grace period for receiving a vaccine.
If workers decline to receive shots in that time frame, Psaki said, they will “go through the standard HR process,” which she said would include progressive disciplinary action. At least one major labor union challenged the mandate even before Biden delivered his speech.
Cathie McQuiston, a deputy general counsel for the American Federation of Government Employees, a union representing some 700,000 federal workers, said in an interview that her organization would be working with agencies to “not skip over procedures and make sure employees have due process” if they are disciplined.
The federal employee mandate will apply to employees of the executive branch, including the White House and all federal agencies and members of the armed services — a workforce that numbers more than 4 million — but not to those who work for Congress or the federal court system, according to White House officials.
The mandate for health care workers will apply to those employed by most institutions that accept Medicare and Medicaid reimbursement, including hospitals, dialysis centers and nursing homes, according to the officials. It will be enforced by the Centers for Medicare and Medicaid Services, which regulates the health care industry.
“We would like to be a model for what we think other business and organizations should do around the country,” Psaki added.
The mandates are a marked shift for a president who, mindful of the contentious political climate around vaccination, initially steered away from any talk of requiring vaccines. In late July, he took one step closer to mandates by announcing that federal workers who refused to be vaccinated would have to undergo regular coronavirus testing. But last month’s decision by the Food and Drug Administration to grant full approval to the Pfizer-BioNTech vaccine to those 16 and older — which also prompted the Pentagon to require its employees to get vaccinated — has strengthened Biden’s hand.
Companies had put off the question of whether to mandate for months, worried about potential litigation and employee pushback. But stalling vaccination rates and the rise of the contagious delta variant put new pressure on executives. They were provided cover to go forward with requirements after earlier mandate moves by the Biden administration.
Soon after, Walmart, The Walt Disney Co., Google and others said they would adopt mandates. When the Pfizer vaccine received full federal approval late last month, Goldman Sachs, Chevron and others followed suit as Biden encouraged corporate mandates.
Still, Gostin said there is much more the president could do. Biden has already exercised his executive authority to require masks on airplanes and interstate trains and buses and could similarly mandate vaccination for international or interstate travel — a step that Gostin described as “low-hanging fruit.”
One thing Biden cannot do is require all Americans to be vaccinated; in the United States, vaccinations are the province of the states. But Gostin said the president could also dangle the prospect of federal funding to prod states to require their own workers to be vaccinated, and his administration could offer technical guidance to states that want to develop “vaccine passports” for people to provide digital proof of vaccination.
But Biden made it clear Thursday that he would do what he could to “require more Americans to be vaccinated to combat those blocking public health,” a reference to Republican governors who have blocked attempts to mandate masks or require vaccines.
“If they will not help,” Biden said, “if those governors won’t help us beat the pandemic, I’ll use my power as president to get them out of the way.”
This article originally appeared in The New York Times.