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Biden’s vaccine business mandate and the legal challenges it may face

that of President Biden announcement last week that companies with 100 or more employees must demand that they be vaccinated or tested for COVID-19 regularly triggered immediate wishes for some republican governors to challenge the rule.

The mandate has not yet been drafted by the Occupational Safety and Health Administration of the Ministry of Labor, but several legal experts have predicted what the subject of the prosecution against him would be.

Is a vaccine mandate for companies excessive?

“It’s a question of whether or not it is excessive or not for OSHA to rely on the health safety and well-being test,” said Tracey Diamond, partner of the work and employment practice group. for Troutman & Pepper.

Why OSHA would step in now and establish a new rule when accommodations were made for unvaccinated employees in the past 18 months could present a problem, but she noted that the increased ‘creeping’ spread of the variant Delta could answer that question.

Larry Gostin, faculty director at Georgetown University’s O’Neill Institute for National and Global Health Law, and author of “Global Health Security: A Blueprint for the Future,” believes Congress has already granted the president the authority to do what he does under the Occupational Health and Safety Act.

“In my opinion, the president is on rock solid legal ground,” Gostin said.

Passed in 1970, the law aimed to lay down a “patchwork” of worker safety laws across states and make them more uniform, Gostin said.

“He acts under direct authority,” Gostin said. “And Congress has ample authority, sufficient constitutional power to grant that power to the president because businesses, especially large corporations, say with a hundred or more employees, operate in interstate commerce.”

According to Gostin, the Biden administration will have to counter arguments as to whether a law dealing with working conditions can reasonably be applied to an illness.

“The first challenge that will likely be posed is to say that when Congress passed OSHA, it intended to regulate unsafe conditions in the workplace, but not a vaccine or infectious disease,” Gostin said. . “But I think that’s a frivolous argument because a worker who is exposed to a potentially fatal infectious disease like SARS COV-2 is at as much risk, if not more, than having an injury on the job. Truth is, workers who are in close proximity to each other with a highly infectious, burgeoning Delta variant are placed in an extremely dangerous position, and it is the responsibility of the President and the Ministry of Labor to ensure their safety. “

It remains to be seen whether companies will be required to take into account disabilities, pregnancies or religious exemptions.

What happens in states where vaccination warrants are prohibited?

In states like Texas or Florida, where the governor or legislature has banned vaccination warrants, federal rule would prevail over state rule, Gostin said.

“I always thought these anti-vaccination or anti-mask laws in places like Florida or Texas were extraordinarily reckless and put workers at risk and put the community and their families at risk, but I always thought they were probably legal, “Gostin said.” So a state can require a business to do certain things in that state, and a state can also require a city or political subdivision to do certain things in that state. State But federal law clearly prevails over state law by virtue of the Constitution.

Walter Olson, an attorney for the Cato Institute, pointed out on Twitter that OSHA will use a temporary emergency standard to implement the requirement. And a Congressional Research Service report on OSHA’s use of this authority of temporary emergency and COVID-19 standards noted that the agency has “rarely used this authority in the past” since the courts have canceled its use on asbestos in 1983. When OSHA used a temporary emergency standard, courts often canceled its use, Olson noted.

The Biden administration has not determined when the mandate will take effect for companies with 100 or more employees. White House press secretary Jen Psaki said last week that it would be up to companies to cover the cost of regular testing for employees who refuse the vaccine. The mandate is expected to affect approximately 80 million employees in the United States

If the mandate is maintained

If upheld by the courts, the president’s mandate for vaccines in the private sector could provide a legal buffer for companies that wish to impose a vaccine mandate but have hesitated for fear of legal action. As CBS News reported this spring, legal scholars agree that sole proprietorships have the right to require proof of vaccination of their employees, some exemptions being probably necessary.

“I think it is in the best interests of the private sector to demand vaccination and for the president to order it to give them some political and cultural cover,” Gostin said. “They can say, ‘Well that wasn’t me, we had to do it.’ Many companies have done it already, many large companies, so it’s not foreign or entirely imposed from outside. It’s something that has happened in business before. ”