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White House and HHS Employees Aren’t ‘Exempt’ from Vaccine Mandate

 

SciCheck Digest

While some specifics of President Joe Biden’s COVID-19 vaccine mandates haven’t been determined, misleading claims about who will be “exempt” have circulated online. Employees at the White House and in agencies within the Department of Health and Human Services are subject to Biden’s executive order requiring federal employees to be vaccinated.


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President Joe Biden on Sept. 9 announced a six-point plan aimed at combatting the COVID-19 pandemic, and the first part of the strategy is increasing the vaccination rate.

To do that, Biden introduced vaccination mandates for some employers. The specifics haven’t been determined yet for some parts of his plan, but misleading claims about which employers will be “exempt” have been circulating online.

One viral version of the claim lists 11 businesses, government branches, or federal agencies as being “exempt.”

That list includes a mixture of entities that are actually covered under the mandates, some that are not covered, and some that might be covered  — but it’s unclear without more guidance about the directives.

The Safer Federal Workforce Task Force, which Biden established on his first day in office, is tasked with developing guidance for implementing Biden’s executive order requiring federal employees to be vaccinated. The Occupational Safety and Health Administration, or OSHA, is tasked with developing a rule for employers with 100 or more employees that would require workers to get vaccinated or get tested at least once a week.

Neither the task force nor OSHA has published those details as of this posting. So, we’ll go through what we know for each of the entities listed in the social media claim as being “exempt.”

“Congress/legislative branch” and “Congress staff”

Biden’s executive order requiring federal employees to be vaccinated doesn’t apply to members of Congress. It applies only to executive branch employees, as is true of executive orders generally.

“The president has a lot of authority over employees of the EXECUTIVE branch,” Andrew Reeves explained in an email to FactCheck.org (emphasis his). Reeves is a professor of political science at Washington University in St. Louis and author of a book on executive branch politics.

The legislative and judicial branches are separate and independent.

“The separation of powers — one of the hallmarks of the American political system — is the principle at work here,” Reeves said.

A 2019 Congressional Research Service report on presidential directives described executive orders as being “directed at executive branch officials and instruct them on how to manage agency operations.”

In addition to the separation of powers, Reeves noted that the statutes cited in the executive order — Title 5 sections 3301, 3302 and 7301 — don’t extend to the legislative and judicial branches.

As for whether or not the forthcoming OSHA rule will apply to workers in the legislative branch, that’s unclear.

Currently in Congress, each member’s office makes its own rules regarding vaccination, according to an August memo from the Office of House Employment Counsel.

That memo also notes that “[u]nder the General Duty Clause of the OSHA, each employer must provide a workplace free of recognized hazards likely to cause death or serious physical harm. COVID-19 is considered a recognized hazard.”

The Occupational Safety and Health Act of 1970, which created OSHA and gave it authority to set workplace safety standards, gives OSHA the ability to “promulgate, modify, or revoke occupational safety and health standards that apply to private sector employers, the United States Postal Service, and the federal government as an employer,” a recent Congressional Research Service report explained.

OSHA didn’t respond to our request for clarification on which federal employers would be covered by its forthcoming rule.

“Judicial branch”

For the same reason as the legislative branch, the judicial branch isn’t covered by the executive order.

“The President’s Safety Principles are directed at executive branch departments and agencies,” a spokeswoman for the Administrative Office of the U.S. Courts told us in an email. They do not apply directly to the Judiciary with the exception of common areas in multi-tenant facilities. Any decisions regarding vaccination or testing are made by individual courts based on a number of factors, including the health status of the local community.”

“White House staff”

White House staff are federal employees subject to the executive order.

“He’s the boss. These are his employees,” Peter Meyers, professor of law emeritus at the George Washington University Law School, said of Biden in a phone interview with FactCheck.org.

Specifically, he said, the executive order cites section 7301 of Title 5, which says: “The President may prescribe regulations for the conduct of employees in the executive branch.”

“It couldn’t be clearer,” Meyers said.

A White House official also confirmed to FactCheck.org that staff members are subject to the vaccine requirement.

“CDC employees”

The Centers for Disease Control and Prevention is within the Department of Health and Human Services, which is listed as an executive department in Title 5. The executive order requiring vaccination for federal employees cites that statute, so employees of the CDC are included.

“FDA employees”

The Food and Drug Administration is within the Department of Health and Human Services, which is listed as an executive department in Title 5. The executive order requiring vaccination for federal employees cites that statute, so employees of the FDA are included.

“USPS employees”

The U.S. Postal Service isn’t an executive department, so it’s not covered by the executive order. But it may be obligated to comply with the OSHA rule that is now being drafted.

As we noted above, OSHA has authority to set workplace safety standards that apply to the postal service. According to the Department of Labor’s website, “Under a 1998 amendment to the OSH Act, the U.S. Postal Service is covered under the OSH Act just like any private sector employer.”

The American Postal Workers Union, though, said in a statement, “Until this emergency rule is developed, the APWU will not know if it applies to Postal Service employees. Once the emergency rule is released it will be reviewed and discussed with our attorneys and additional information on how it applies will be released.”

The union also said, “As the APWU has continually stated, all employees are encouraged to wear face coverings at work and are encouraged to voluntarily receive one of the COVID-19 vaccines.”

We also asked the postal service if it expected the OSHA rule to apply, and a spokesman provided us with a statement that said in part: “Because the Postal Service is an independent federal agency that operates under a private sector collective bargaining model, modifications to working conditions are mandatory subjects of bargaining. In addition, our workplaces are subject to regulations from the Occupational Safety and Health Administration (OSHA). Therefore, we are working closely with our union leadership so that once OSHA’s COVID-19 Vaccination Emergency Temporary Standard (ETS) is issued we can move quickly to determine its applicability to our employees and how best to implement.”

A senior advisor at OSHA reportedly said that postal employees would be subject to the rule, but OSHA didn’t respond to our request for  confirmation.

“NIAID employees”

The National Institute of Allergy and Infectious Diseases is within the Department of Health and Human Services, which is listed as an executive department in Title 5. The executive order requiring vaccination for federal employees cites that statute, so employees of the NIAID are included.

“Pfizer employees”

Pfizer — which worked with German company BioNTech to develop the first COVID-19 vaccine to get full approval from the FDA — announced in August that it would require its U.S. employees to either get vaccinated or agree to weekly testing.

A Pfizer spokesperson confirmed to FactCheck.org that the company is “requiring all U.S. colleagues and contractors to be fully vaccinated, unless approved for a medical or religious accommodation from vaccination.”

The company is also expecting to be covered by the OSHA rule, the spokesperson said.

“Moderna employees”

Similarly, Moderna — which developed another COVID-19 vaccine — already requires its U.S. employees to be vaccinated against COVID-19. Also, since it has more than 1,800 employees, it is likely to be covered by the OSHA rule.

“Illegal aliens”

These mandates apply based on employment status, not citizenship status. No part of Biden’s plan mentions immigrants or “illegal aliens.”

Editor’s note: SciCheck’s COVID-19/Vaccination Project is made possible by a grant from the Robert Wood Johnson Foundation. The foundation has no control over FactCheck.org’s editorial decisions, and the views expressed in our articles do not necessarily reflect the views of the foundation. The goal of the project is to increase exposure to accurate information about COVID-19 and vaccines, while decreasing the impact of misinformation.

Sources

Kiely, Eugene and Lori Robertson. “Q&A on Biden’s COVID-19 Vaccine-or-Test Rule.” FactCheck.org. 10 Sep 2021.

Path out of the Pandemic. Whitehouse.gov. Accessed 4 Oct 2021.

Biden, Joe. Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. Whitehouse.gov. 9 Sep 2021.

Congressional Research Service. “Occupational Safety and Health Administration (OSHA): Emergency Temporary Standards (ETS) and COVID-19.” Updated 13 Sep 2021.

Biden, Joe. Remarks by President Biden on Fighting the COVID-⁠19 Pandemic. Whitehouse.gov. 9 Sep 2021.

Reeves, Andrew. Professor of political science, Washington University in St. Louis. Email to FactCheck.org. 3 Oct 2021.

Congressional Research Service. “Presidential Directives: An Introduction.” 13 Nov 2019.

Office of House Employment Counsel. VACCINATION POLICY QUESTIONS & ANSWERS. 27 Aug 2021.

Congressional Research Service. “Occupational Safety and Health Administration (OSHA): Emergency Temporary Standards (ETS) and COVID-19.” Updated 13 Sep 2021.

Spokeswoman, Administrative Office of the U.S. Courts. Email to FactCheck.org. 5 Oct 2021.

Meyers, Peter. Professor of law emeritus, George Washington University Law School. Telephone interview with FactCheck.org. 6 Oct 2021.

5 U.S. Code § 101 – Executive departments. Law.cornell.edu. Accessed 4 Oct 2021.

American Postal Workers Union. “Vaccination Mandates by President Biden.” APWU.org. 10 Sep 2021.

Spokesman, U.S. Postal Service. Email to FactCheck.org. 1 Oct 2021.

National Law Review. “Prepare Now for a New OSHA Emergency Temporary Standard on COVID-19.” Natlawreview.com. 13 Sep 2021.

McDonald, Jessica. “A Guide to Pfizer/BioNTech’s COVID-19 Vaccine.” FactCheck.org. Updated 31 Aug 2021.

Spokesperson, Pfizer. Email to FactCheck.org. 4 Oct 2021.

McDonald, Jessica. “A Guide to Moderna’s COVID-19 Vaccine.” FactCheck.org. Updated 8 Jul 2021.

Moderna. Press release. “COVID-19 Vaccination Requirement for All Workers in the U.S.” 20 Aug 2021.

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