Congress is exempt from the COVID-19 vaccine mandate, as are the Judicial branch and the United States Post Office (USPS). These governmental branches are exempt in their own right—but not because of Biden's EO. The vaccine mandate exemption in Biden's EO applies only to the Executive Branch.
Biden has ordered the Department of Labor—in cooperation with the Department of Occupational Safety and Health Administration (OSHA)—to invoke a COVID-19 Vaccination Emergency Temporary Standard (ETS). Press Secretary Jen Psaki told reporters that the pandemic is a public health emergency, posing a "grave risk to workers"—therefore, the mandates are legitimate.
Psaki explains the OSHA ETS in the tweet below:
Executive orders apply only to the Executive Branch. The Legislative branch, made up of the House of Representatives and the Senate, is known together as Congress. USA Today writes:
“So, now the important question: Why did Biden's executive order only cover executive branch agency employees?" said Matthew Glassman, a fellow at Georgetown’s Government Affairs Institute. "The answer is that he doesn't have the authority to make such regulations for the legislative branch."
"It's as simple as that,” Glassman said. “POTUS has statutory authority to make regulations for Title 5 executive branch employees, and he has no such authority to do so for legislative branch employees.”
The laws that do not apply to Congress can be found here. The specifics of the vaccine exemption for Congress with reference to OSHA is found in the following paragraph:
OSHA applies to ``any person engaged in a business affecting commerce who has employees.'' Under the Act's definitions, the term employer ``does not include the United States.''51 OSHA, therefore, does not apply to Congress. Although the United States is specifically excluded from the Act's definition of ``employer,'' the Act makes it ``the responsibility of the head of each Federal agency to establish and maintain an effective and comprehensive occupational safety and health program which is consistent with'' the national standards promulgated by the Secretary under the Act.52 An executive order states that this statutory provision is applicable to all Federal employees and directs the Secretary to consult with the heads of all agencies in the legislative and judicial branches to help them develop safety and health programs.53 There is no analogous program for Congress, nor for the Executive Office of the President.
Nancy Pelosi herself said in April that she could not "require vaccinations for members" of Congress. She also said that she couldn't require it for the American people either. The pertinent excerpts of those comments are highlighted below:
Pelosi Congress Exempt Vaccine
The OSHA “emergency temporary standard” will mandate employers with 100 or more workers to require the vaccine or conduct weekly testing of unvaccinated employees. Some contractors may be exempted.
Govexec.com elaborates on the mandates for contractors below:
"The executive order does not cover: grants; contracts or contact-like instruments or agreements with Indian Tribes (as outlined in the Indian Self-Determination and Education Assistance Act); contracts or contract-like instruments with values equal to or less than the simplified acquisition threshold; employees who work outside of the United States; and “subcontracts solely for the provision of products.”
David Berteau, president and CEO of the Professional Services Council, which represents over 400 companies that contract with the federal government, told Government Executive earlier on Thursday that the simplified acquisition threshold says that “anything under $250,000 as a contract is exempt from a lot of the rules, so PSC is watching to see if these types of contracts are exempt from the vaccination mandate.”
Further guidance on the details of Biden's Executive Order will be announced by September 24.
The post office union is currently reviewing OSHA’s COVID-19 Vaccination Emergency Temporary Standard (ETS) to "determine its applicability to our employees and how best to implement," per its publicly released statement on Sept. 16 captured in full below:
USPS Sept. 16 Statement on Mandated Vaccine/Biden
UncoverDC previously reported the USPS exemptions "may be due to the fact that the USPS is an “establishment of the executive branch of the Government of the United States,” controlled by presidential appointees and the postmaster general. The Postal Service shares in the sovereign immunity of the Federal Government from state and local regulation, except in areas where Congress has waived such immunity.” It could be very difficult for the Biden administration to win a case if the USPS union were to sue—as seen in Dolan v. Postal Service, where the case was eventually dismissed. The post office also has powers of eminent domain.
Can Vaccines Be Mandated?
Concerning federal mandates on vaccines, the Constitution Center cites the recent Congressional Research Service (CRS) paper entitled, "State and Federal Authority to Mandate the COVID-19 Vaccination," The Constitution Center summarizes it as follows:
"The broad powers held by states to control vaccine policy can also be used by state governments to block vaccine mandates, in certain situations, at lower government levels and in the private sector. As of August 2, at least 14 states had enacted Covid-19 related laws that barred employer vaccine mandates, school vaccine mandates, or vaccine passports."
"At a federal level, the vaccine mandate question is more complicated. With few exceptions, the CRS says there are no laws that allow the federal government to issue a vaccine mandate to the general population. These exceptions include requiring proof of vaccination for immigrants requesting permanent resident status and vaccine mandates for military service members—allowing for certain exemptions. Recently, President Joe Biden ordered federal employees and contractors to attest to getting vaccinated or undergo weekly testing and other safety protocols."
"According to the CRS, several federal vaccine mandate actions are theoretically possible. The Executive Branch could cite Section 361 of the Public Health Service Act (or PHSA), which allows the Department of Health and Human Services or the Centers for Disease Control and Prevention (CDC) to make necessary measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”
"Under the Constitution’s Spending Clause, Congress could provide financial incentives for states to enact mandates. It could also regulate vaccine requirements related to interstate travel under the Commerce Clause. But any federal actions to enforce or incentivize vaccine mandates may face legal challenges based on the 10th Amendment’s prohibition on commandeering or forcing states to use their own resources to carry out federal policies."
Religious exemptions remain "an important question," according to the Constitution Center:
"The allowance of vaccine exemptions based on religious beliefs, in particular, will remain an important question as the debate grows over vaccine mandates at the federal and state levels, as well as in the private sector. As of May 2021, 44 states and the District of Columbia had laws that allowed students to claim a religious exemption to immunizations, while 14 states allowed for philosophical exemptions."
All states and the District of Columbia allow for a medical exemption, per the CDC.