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This award-winning blog supplements the articles in Hospital Infection Control & Prevention.

Biden Mandate to Vaccinate All Healthcare Workers Within The Law

President Biden is within the law in mandating COVID-19 vaccines in all healthcare settings and for businesses with 100 or more employees, says Lawrence Gostin, JD, a law professor at Georgetown University in Washington, DC.

More specifically, the president has the power to use government agencies to enforce vaccine mandates in healthcare and places of work, he added. Biden announced the vaccination requirements on Sept. 9, 2021, expanding on his idea of using the Centers for Medicare & Medicaid Services (CMS) to require all healthcare workers to be immunized against the pandemic virus.

“Already, I’ve announced, we’ll be requiring vaccinations for all nursing home workers who treat patients on Medicare and Medicaid, because I have that federal authority,” Biden said. “Tonight, I’m using that same authority to expand that to cover those who work in hospitals, home healthcare facilities, or other medical facilities — a total of 17 million healthcare workers. If you’re seeking care at a health facility, you should be able to know that the people treating you are vaccinated. Simple. Straightforward. Period.”

Using the reimbursement powers of CMS to affect healthcare policy should hold up in court given the public health situation, Gostin says.

“I think he is on strong legal ground there,” Gostin says. “The federal government can set conditions on the receipt of Medicare and Medicaid funding, as long as they are reasonable. These mandates are evidence-based and logical because healthcare settings [are treating] some of most vulnerable people in the country. Healthcare workers and establishments have the strongest ethical duty to protect their patients. So that is on firm legal ground.”

In another mandate that could see legal challenges, Biden ordered the Department of Labor to develop an emergency rule to require all employers with 100 or more workers — 80 million workers in total — to ensure their workforces are fully vaccinated or that people can show a negative test at least once a week.

“I think there will be challenges, but again that president is on strong legal footing,” Gostin says. “He is acting under the Occupational Health and Safety Act, which allows the president to set standards for workplace health and safety. The threat of an infectious disease in the work place — with a highly infectious variant that could cause hospitalization or death — is at least as hazardous as a workplace injury. We are currently in a public health emergency.”

While some thought the measures went too far or not far enough, Gostin clarified that a president does not have the power to mandate vaccination for all citizens, despite some "malicious" misinformation to the contrary.

Concerning the latter, a 1905 Jacobsen vs. Massachusetts Supreme Court ruling — which upheld a city smallpox vaccine mandate — has nothing to do with the federal powers of a president, he says.

“That’s a common and malicious assumption that people make,” he says. “It is the states and cities that have that power, not the federal government. That 1905 case involved the powers — in that particular case — of the city of Cambridge, MA.”