A hefty fine for companies that will not require their employees to get the vaccine

Joe Biden

 

A hefty fine for companies that will not require their employees to get the vaccine

Biden steps into a legal battle with vaccine mandates

President Biden is heading toward a battle with Republican-led states over his mandate to several private companies to ask their employees to get the COVID-19 vaccine.

Biden on Thursday announced the blanket rule, which applies to companies with 100 or more workers.

"This action by President Biden is blatantly illegal, and Georgia will not support it," Georgia Governor Brian Kemp (right) wrote on Twitter.

Biden told Republican-led states to "do it" before lamenting that some GOP governors were "too arrogant about the health of their communities."

Courts have long held that employers have the right to require vaccinations for their employees, but Biden's plan raises questions about whether the president could impose such requirements for the private sector.

Some experts believe Biden has a solid legal footing. Still, they expect the new corporate rule, led by the Labor Department's Occupational Safety and Health Administration (OSHA), will spark numerous lawsuits.

These challenges could halt the law's implementation, and a 6-3 majority will adjudicate any lawsuits that find their way to the Supreme Court.

Lawrence Justin, professor of public health law at Georgetown University, said Biden is on "solid legal ground" because of the powers Congress granted the president through the 1970 Occupational Health and Safety Act. Biden's new actions on COVID-19 would represent an unprecedented application of this law.

"If there has been a true emergency in our recent history, this is it," Gustin said. "What it will do, if implemented fully and quickly, can boost the universal vaccination coverage of our population so that we have a good chance of containing the virus by spring."

OSHA's upcoming emergency order will be based on what's known as a "general duty clause" - that employers should have a significant duty to take action to ensure the safety of their workers.

Biden's requirements could affect nearly 80 million workers, while companies that fail to comply could face fines of up to $13,600 per violation (per unvaccinated employee).

"How do you have a safe workplace if people are not protected from COVID?" 

"So it's a widespread exercise of government power on the one hand because a lot of them work in workplaces covered by the Occupational Safety and Health Administration. But on the other hand, it's very routine. The government has spotted a risk in the workplace, telling employers what to do to mitigate this risk.

Gabriel Mallor, a conservative attorney and writer, argued that Biden is weak because the works' arrangement is known as the Temporary Emergency Standard (ETS), which means he doesn't go through the whole rule-making process that could take months or even years. The last such order was issued in 1983 to protect workers from asbestos.

OSHA has never been used to require a vaccine.

"The odds are not good, at least insofar as the mandate is to use the temporary emergency standard," Mallor said.

During a briefing Friday, Jeff Zentes, the White House coronavirus response coordinator, told reporters that Labor Secretary Marty Walsh will oversee the rule-making process at the occupational safety and health Administration, saying the process will take weeks and the rule will then be implemented.

Senator Josh Hawley (R-Mis.) noted that challenges to the law will be based mainly on procedures and suggested that the vaccine requirement needs to go through a longer rule-making process.

"Congress was clear that it did not intend to use the ETS process to 'circulate the normal standard-setting process,'" he wrote in a Friday letter to Walsh.

Industry groups and companies may also seek to challenge the norm in several ways.

The White House has indicated that some companies have already moved to use vaccines and that Biden's order will build on that.

"Vaccination requirements are the current standard that many companies use," Zenz said. "The president's action will speed up this number of companies.