Desperate times are calling for desperate measures was the message President Joe Biden delivered Thursday when he announced a forthcoming vaccine mandate for firms with at least 100 employees.
“We’ve been patient. But our patience is wearing thin, and your refusal has cost all of us,” Biden said.
Biden said the Occupational Safety and Health Administration, a federal agency, is developing an emergency rule “to require all employers with 100 or more employees, that together employ over 80 million workers, to ensure their workforces are fully vaccinated or show a negative test at least once a week.”
As it stands, some 27% of the U.S. population that is eligible to get a COVID-19 vaccine haven’t done so as of Thursday, according to U.S. Centers for Disease Control and Prevention data.
“‘This is not about freedom or personal choice’”
Employers that don’t comply with the rule, which is not yet in effect nor formally written, will be subject to a $14,000 fine per violation. OSHA did not immediately respond to MarketWatch’s inquiry regarding when the rule could go into effect — as well as how it will be enforced.
“This is not about freedom or personal choice,” Biden said in his remarks on Thursday. “It’s about protecting yourself and those around you — the people you work with, the people you care about, the people you love.”
Employers who oppose the vaccine mandate and COVID-19 testing plan Biden announced face a potentially costly uphill legal battle that’s unlikely to rule in their favor, should they wish to challenge the upcoming OSHA rule, employment attorneys told MarketWatch.
‘Safe and healthy workplace‘
The Occupational Safety and Health Act was passed in 1970. It requires employers to provide “a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm,” according to OSHA.
OSHA, a branch of the Department of Labor that has powers to inspect and visit workplaces, applied the law to the pandemic by requiring that employers enable workers to practice social distancing on the job and take other precautions to protect workers from contracting COVID-19.
The agency said it enforces such rules by inspecting workplaces — especially those that receive complaints of potential unsafe working conditions that may cause someone to contract COVID-19 or in cases where there is high transmission of the virus at a particular worksite.
Can the feds enact a vaccine mandate?
The OSHA will likely use the same logic to enact the vaccine mandate program Biden unveiled on Thursday, said David J. Pryzbylski, a partner at Barnes & Thornburg, a law firm with offices in 20 different U.S. cities.
Pryzbylski said he was “flooded with calls” Friday morning from clients who are inquiring about what the mandate could mean for their businesses, but not how they can potentially get around it.
“If OSHA goes through the administrative process to formulate a rule and justify a rationale behind the rule, it might be legally difficult to ultimately get that rule overturned,” he added — especially as courts have historically given “deference to employment agencies.”
“Employers that don’t comply with the rule, which is not yet in effect nor formally written, will be subject to a $14,000 fine per violation.”
“The concept that OSHA would issue a regulation that governs arguably health and safety in the workplace is probably the easiest way to go to some sort of vaccine mandate,” said Domenique Camacho Moran, a partner at the labor and employment practice of New York-based law firm Farrell Fritz.
“From an employers’ perspective, there will undoubtedly be challenges to this rule,” she added, but it’s likely to be “to be time-consuming and expensive.” Given that Biden’s plan offers weekly testing as an alternative to getting a COVID-19 vaccine will also “make a challenge much more difficult.”
On the other hand, “many employers were already thinking about how to manage the vaccine question, so this comes as a welcome direction,” Moran said.
“‘Supreme Court precedent generally favors the President during a pandemic — a time of declared national emergency.’”
Condon McGlothlen, an employment attorney at Seyfarth Shaw, a law firm with offices in 17 different U.S. cities, sees matters differently.
“The Constitutionality of [Thursday’s] action is unclear, but Supreme Court precedent generally favors the President during a pandemic — a time of declared national emergency.”
At the same time “it is highly questionable whether the Executive Branch can mandate employees receive a vaccine approved for Emergency Use Authorization only,” McGlothlen added. So far only Pfizer/BioNTech
PFE,
BNTX,
has received the Food and Drug Administration’s full approval. Moderna
MRNA,
and Johnson & Johnson
JNJ,
have not.
McGlothlen pointed out that health-care providers administering those vaccines are required by federal law to inform recipients: “Under the EUA, it is your choice to receive or not receive the vaccine. Should you decide not to receive it, it will not change your standard of medical care.”
“This may not matter if the FDA approves vaccines besides Pfizer for full use in the next few weeks,” he said. “Unless and until that happens, however, it is highly questionable whether OSHA has authority to do what the president has directed.”
This post was originally published on Market Watch
