And Republican Governors Brian Kemp of Georgia and Kristi Noem of South Dakota have said they plan to challenge the mandate. Florida Governor Ron DeSantis has said he opposes “warrants of any kind”.
All of this underscores how difficult it will be for the administration to quickly implement a radical policy that will affect some 80 million workers in the private sector.
“I think it redefines ‘ideas are simple, execution is difficult,'” said attorney Michael Lotito, who represents the companies at law firm Littler Mendelson.
“What we have right now is chaos,” Lotito added, “due to the unintended consequences of such an announcement where there is no clarity regarding a gargantuan number of questions that have been left open “.
The new emergency rules were announced Thursday as part of a new six-part effort by Biden to increase the vaccination rate in the United States as he seeks to quell criticism of the administration’s handling of ‘an increase in cases of coronavirus linked to the Delta variant. According to the Centers for Disease Control and Prevention, only about 53% of the population is currently fully vaccinated.
The rules, which will be fleshed out by administration officials, will be the first Covid-19-specific federal security mandates to impact everyday workplaces. Until now, most employers outside of healthcare have been subject to voluntary safety guidelines.
The temporary emergency standard will require companies with more than 100 workers to verify that their workforce is vaccinated or tested weekly for Covid-19. Employers who break the rules could face fines of $ 14,000 per violation, according to the White House.
But there are many questions about the scope of the rule. For example, does the threshold of 100 employees apply to a construction site or to an entire company? Does the company have to pay for the tests or the employee?
Implementing a rapid testing program like the one envisioned in Biden’s plan is logistically difficult and expensive, said Ian Schaefer, president of Loeb and Loeb’s employment and work practice in New York City.
“That’s millions of dollars a year for a business of any size. I’ve seen companies do this before Biden makes his order and it’s incredibly cumbersome and time consuming and may not even guarantee health and safety in the same way that requiring vaccines, ”Schaefer said.
“Administration is incredibly difficult, and flawed, when it comes to ensuring that testing is done in a timely manner, that people who test do not in fact have COVID,” he said. -he adds.
It is also not known how soon the rule will come into force. – standards issued by federal agencies typically take several weeks to draft and review by the executive branch.
However, the Ministry of Labor has been working on the standard for at least a week, according to two people familiar with the matter.
The rules will be enforced by the Federal Occupational Safety and Health Administration and are expected to be published in the coming weeks, an administration official said on Thursday. But the agency took several months to issue a temporary emergency Covid-19 healthcare standard earlier this year and spent weeks meeting with stakeholders on the rule.
Business groups are expected to oppose certain aspects of the vaccine emergency rule.
Unions have also warned that mandatory workplace vaccination policies must be negotiated between workers and their employers, increasing the possibility of friction and delays at individual workplaces.
“Everyone should be vaccinated – as a step to stop the pandemic,” AFL-CIO President Liz Shuler said in response to Biden’s Covid-19 plan. “Workers and unions should have a say in shaping these policies.”
The mandate also faces a battle in the court of public opinion. A recent Washington Post-ABC News poll found that less than half of Americans support workplace vaccination mandates.
Despite the uncertainties, a legal battle does not seem likely to come from big players like the Chamber of Commerce or the National Retail Federation.
“We appreciate the administration’s commitment to ensuring safe workplaces despite the current challenges of the pandemic,” said Edwin Egee, vice president of government relations and workforce development at the NRF in response to the announcement. “We look forward to working with the Ministry of Labor as it promulgates this rule.”
The Chamber of Commerce said in a statement that it will “carefully review the details of the related decrees and regulations” and strive to ensure that employers have “the resources, guidance and flexibility” to comply with the requirements. .
The Equal Employment Opportunity Commission has previously clarified that employers can require their staff to be vaccinated, provided they provide accommodations for workers who say they cannot be vaccinated due to their religious beliefs or a disability. Companies can tell workers to stay home if they can’t be vaccinated for any of these reasons, and workers could be made redundant if their employer is unable to accept remote work. according to lawyers.
But proving it would be ‘undue hardship’ to provide housing can be difficult, and lawyers say they are skeptical that claiming the cost of testing is too high would meet that threshold. .