President Biden is barreling toward a fight with GOP-led states over his mandate for many private businesses to require employees get vaccinated against COVID-19.
Biden on Thursday announced the sweeping rule, which applies to businesses with 100 or more workers, and issued similar requirements for most federal employees and for health care settings that receive federal Medicare and Medicaid funding.
The new measures were immediately met with outrage from a chorus of GOP governors who pledged to challenge the rule in court, arguing the vaccine requirements violate personal freedoms and that businesses should be allowed to set their own workplace standards.
“This action by President Biden is blatantly unlawful, and Georgia will not stand for it,” Georgia Gov. Brian Kemp (R) tweeted.
Biden responded to the complaints on Friday, telling Republican-led states to “have at it,” before lamenting that some GOP governors had been “so cavalier with the health of their communities.” He did not single out any governors.
The courts have long held that employers have the right to require vaccines for their employees, but Biden’s plan raises questions over whether a president can mandate such requirements for the private sector.
Some experts believe Biden is on strong legal footing, but they expect the new rule for businesses, which will be spearheaded by the Labor Department’s Occupational Safety and Health Administration (OSHA), to trigger numerous lawsuits.
Those challenges could end up halting implementation of the rule, and any lawsuits that find their way to the Supreme Court will be decided by a 6-3 conservative majority.
Lawrence Gostin, a public health law professor at Georgetown University, said Biden is on “rock solid legal ground” because of the powers granted by Congress to the president through the Occupational Health and Safety Act of 1970. Biden’s new COVID-19 measures would represent an unprecedented application of that law.
“If there were ever a true emergency situation in our modern history, this is it,” Gostin said. “What it will do, if it were fully implemented and quickly, it could boost our overall population vaccination coverage so high that we would have a good chance of containing the virus by the spring.”
The coming emergency order from OSHA will rely on what’s known as the “general duty clause” — that employers have a general duty to take action to ensure their workers are safe.
Biden’s requirement could affect nearly 80 million workers, while businesses that fail to comply could face fines up to $13,600 per violation.
“How do you have a safe workplace if people are not protected against COVID?” said Scott Burris, director of the Center for Public Health Law Research at Temple University.
“So it is a really broad exercise of government power on the one hand, because so many work in workplaces covered by OSHA. But on the other hand, it’s pretty routine. The government has spotted a danger in the workplace and it’s telling employers what they have to do to alleviate that danger.”
The administration will rely on what’s known as an emergency temporary standard, a rule that OSHA can issue if it determines workers are exposed to a “grave danger” that the order is necessary to address.
Gabriel Malor, an attorney and conservative writer, countered that Biden is on weak footing because the order in the works is what’s known as an emergency temporary standard (ETS), meaning it doesn’t go through the full rulemaking process that can take months or even years. The most recent such order was issued in 1983 to protect workers from asbestos.
The OSHA law has never been used to require a vaccine.
“The odds are not good, at least insofar as the mandate is authorized using an emergency temporary standard,” Malor said.
Labor Secretary Marty Walsh will oversee the rulemaking process at OSHA, White House coronavirus response coordinator Jeff Zients told reporters during a briefing Friday, saying the process would take weeks and that the rule would be implemented thereafter.
Sen. Josh Hawley (R-Mo.) signaled that challenges to the law would be largely based on procedure and suggested a vaccine requirement would need to go through the lengthier rulemaking process.
“Congress was clear that it did not intend the ETS process to ‘be utilized to circumvent the regular standard-setting process,’ ” he wrote in a Friday letter to Walsh.
Industry groups and businesses may also seek to challenge the rule in a variety of ways.
The White House has pointed out that some businesses have already moved to mandate vaccines, and that Biden’s order will build on that.
“Vaccination requirements are the current standard employed by so many corporations,” Zients said. “The president’s action will accelerate that number of companies across the board for employers over 100.”
But experts worry that if the Supreme Court doesn’t quickly take up one of the legal challenges, the U.S. could have a patchwork of different requirements.
Jennifer Piatt, deputy director for the Network for Public Health Law’s western region office, pointed to differences in how courts have handled other vaccine requirement cases.
“That’s the problem with having so many different cases filed in so many different areas of the country. Inevitably courts make different decisions, courts come to different conclusions, and that could repeat itself at circuit court level,” she said. “You may have years of litigation with the potential for years of different determinations on the books.”
Some also see the Supreme Court as a wild card.
“When someone like Professor Gostin says this is a legal no-brainer, what he means is based on past precedent one wouldn’t imagine a court overturning it. But we have a court that has now started to do stuff that is not so predicted by past cases,” Burris said.
The Supreme Court recently has been more inclined to decide cases on its shadow docket without a full hearing on the merits, leading to major setbacks for Democrats through decisions like upholding the restrictive Texas abortion law and overturning the eviction moratorium.
The eviction moratorium could have parallels with challenges to the vaccine requirement in that the court ruled managing eviction policy went beyond the purview of the nation’s public health laws.
“The court said the law talked about fumigation and inspecting and destroying cargo — it doesn’t say anything about eviction,” Burris said.
“Here the court may say, ‘OSHA protects against injury or people getting poisoned with chemicals. It doesn’t say anything about infectious disease.’ So I’m not betting my house against anything that goes to the Supreme Court these days — including this no-brainer,” he added.
Gostin acknowledged the high court presents a risk.
“It’s a very conservative judiciary and a very conservative Supreme Court and they have not hesitated at all to temporarily or even permanently block executive actions of the president,” he said. “I’m hoping that they won’t do that in this case, because if you follow the rule of law, you would certainly uphold what Biden is doing.”
The White House, however, has not expressed any concern over the legality of Biden’s mandates.
White House press secretary Jen Psaki said the administration is on strong legal footing, citing the 1970 OSHA law.
“It requires the Department of Labor to take action when it finds grave risk to workers,” Psaki said of the statute. “Certainly, a pandemic that has killed more than 600,000 people where 25 percent of eligible people have not yet been vaccinated poses a grave risk.”