Biden’s vaccine mandates could affect up to 100 million Americans, or almost two-thirds of the American workforce, and have elicited predictable backlash from several Republican states, culminating in the latest arena in the administration’s battle with state officials over how to address the evolving pandemic.
Though the vaccine mandate’s specific rules have not been written yet, various Republican state officials have already stated their intention to contest them. Arizona’s attorney general announced Tuesday that the state will sue Biden and other administration officials over the vaccine mandates, claiming they are “unconstitutional.”
South Dakota Republican Gov. Kristi Noem characterized the mandates as a “gross example of federal meddling.” In contrast, Georgia Republican Gov. Brian Kemp characterized aspects of Biden’s plan as “blatantly unlawful overreach.”
As part of his vaccine strategy, Biden asked the Labor Department last week to mandate all businesses with 100 or more employees to require weekly vaccinations or testing for Covid-19.
Biden’s Vaccine Mandates Bank On The Support Of Labour Unions
Leading business lobbies, such as the US Chamber of Commerce, have widely supported the proposed vaccine mandate. The AFL-CIO and a host of other major labor unions have endorsed the mandate; however, some law enforcing unions have expressed reservations about how Biden intends to implement his plan.
Biden’s plan hinges on the Department of Labor’s capacity to establish an “emergency temporary standard” to protect workers from new risks, as long as “employees are exposed to grave danger” and the standard “is essential to protect” them from that danger. This authority derives from the 1970 Occupational Safety and Health Act.
However, this authority is rarely invoked, and past instances have been contested in court. Until the coronavirus pandemic, this authority had not been invoked since 1983, when courts invalidated an emergency temporary asbestos standard, according to a July 2021 Congressional Research Service report.
In June 2021, the Occupational Safety and Health Administration, a regulatory department within the Department of Labor, released a temporary emergency standard defining protective measures for healthcare workers at increased risk of exposure to Covid-19.
How The Recent Biden’s Vaccine Mandates Compares To Precedent
According to legal experts, Biden’s mandate and OSHA’s new emergency temporary standard may face a difficult battle.
According to labor and employment lawyer Brett Coburn of Alston & Bird LLP, the new mandate’s legality “will hinge on how OSHA defines the ‘grave danger’ at issue here, and how the courts are hearing the inevitable challenges view the case.”
“Perhaps the strongest case for the adoption of an emergency temporary standard that OSHA has seen in its 50-plus year history is stopping the spread of Covid in workplaces,” said Lindsay Wiley, head of American University’s Health Law and Policy Program.
Josh Blackman, a constitutional law professor at South Texas College of Law, is less persuaded that OSHA’s jurisdiction to impose an emergency temporary standard is relevant in this instance.
“Literally, you’re seeking to breathe new life into an old statute,” Blackman explained. “I think the courts usually express skepticism when the administration examines this 50-year-old statute and finds the proper authority required to address this kind of urgent crisis.”.
According to Blackman, other lawsuits from states and other employers in reaction to Biden’s new vaccine mandates are anticipated. In the end, “some judge somewhere will object to this practice, and it will be halted.”
In the meantime, “I think this will provide some employers with cover to impose a mandate they would not have been allowed to impose otherwise,” Blackman added.
It’s worth noting that vaccine mandates have legal precedent, though mostly in non-employment circumstances.
In 1905, the Supreme Court ruled in Jacobson v. Massachusetts that there is no constitutional right to evade a vaccination mandate intended to protect the community. On this basis, Georgia State University College of Law professor Anthony Kreis believes that Americans can legally compel vaccinations for children attending school.
That 1905 Supreme Court ruling is widely regarded as the most persuasive argument for vaccine mandate constitutionality. Even conservative Justice Neil Gorsuch has indicated that if the Jacobson case were heard today, he would vote in favor of the Massachusetts vaccine mandate.