The 4th U.S. Circuit Court of Appeals granted a stay Tuesday of a Virginia district court’s decision that sided with the Virginia Chamber of Commerce and others challenging the Obama administration’s requirement that employers provide vaccines for their employees to show they have complied with the Affordable Care Act’s otherwise-implemented provision barring employers from firing employees for failing to submit to a drug test.
The stay is another major development in the fight over the 2011 vaccine mandate, one of President Donald Trump’s few major domestic policy initiatives that has been dogged by controversy.
Biden, the vice president and former Delaware senator, was one of the measure’s chief authors. He has called the mandate “medically necessary” and said as recently as a year ago that he would work for a change in the law to eliminate the requirement. The Centers for Disease Control and Prevention in October 2017 found that nearly one-third of states had no exemptions for the mandate and that, at the end of that year, 33 states had no exemptions for minor or non-medical conditions and 24 states had medical exemptions.
The decision gives a sign of the potential long-term impact of the dispute if the appellate court decides that Biden did not have legal standing to challenge the measure. The clause he championed as the vice president was originally written to apply to employees at private companies, but federal regulations that resulted from the mandate said that it was specifically intended to apply to everyone in an employer’s “workforce,” including the workforce of state-run colleges and universities.
Biden, as part of an anti-vaccine campaign he began in 2009, has said that he and his family stopped immunizations to avoid the “failure” that he said was sweeping the nation of young adults who were “going into the fields, and gardening.”
His thinking evolved, he wrote in his 2017 memoir. By then, the debate about whether people should be immune to human papillomavirus (HPV), which can cause cervical cancer, had been “undeniably politicized” and “the science had not been proven,” he wrote.
The appeal of U.S. District Judge Anthony Trenga’s ruling on the 2013 employer mandate case argues that Biden has the standing to argue the issue because he is a “very large company” in Virginia, with some 100,000 workers and operations in multiple states.
Trenga, however, wrote that Biden’s failure to develop a vaccination program was not enough to suggest that he could show that he was adequately served by the vaccine mandate.
“[Biden] joined the policy by reason of his public comments — by his own description, he did so to try to advance policies that would benefit his employees,” Trenga wrote. “He was the one who first invoked the notion that the importance of vaccinating his own children prompted him to act, and he did so at significant public cost in furtherance of the public good.”