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Shortly after President Biden announced a new vaccine mandate to tackle the recent wave of COVID-19 caused by the Delta variant, some conservative governors promised to take legal action to challenge the plan. Some have already done so.
Arizona last Tuesday became the first state to sue the Biden administration over COVID-19 vaccine warrants.
In an address to the nation on Sept. 9, Biden described his multi-phased “out of the pandemic” plan, which includes vaccination mandates that will affect about 100 million Americans – two-thirds of all workers. As part of the plan, the federal government will require that all employees of the federal executive, as well as all employees of federal contractors, be vaccinated.
Previously, federal employees had the option of getting vaccinated or having regular tests.
“If you want to work with the federal government and do business with us, get vaccinated,” Biden said. “If you want to do business with the federal government, vaccinate your workforce. “
This vaccine order will cover about 90 percent of the estimated 4 million federal employees. However, it does not apply to non-executive employees, such as members of Congress or judicial employees.
The question for many was whether such a mandate would stand up to legal challenges.
Robert Field, professor of law and public health at Drexel University, told Yahoo News that Biden’s mandates for federal employees are “clearly constitutional” because “it is the president’s power to control executive power and people who work there “.
The new proposal also requires that anyone working in a hospital, home care environment, or other medical facility who treats Medicare and Medicaid patients be vaccinated. This was already a requirement for health care workers in nursing homes that receive federal program funds.
The decision will cover a total of 17 million healthcare workers.
Field says Biden is also “on very clear ground” regarding this part of the new mandate, as federal agencies can set federal funding requirements to ensure patient and staff safety.
The most controversial element of the president’s plan is to ask the Ministry of Labor to issue an emergency rule requiring private employers with 100 or more employees to ensure their workforce is vaccinated or tested every week.
These employers will also be required to give paid time off to workers who decide to get the vaccine, so they can recover from short-term side effects from the vaccine.
According to the president, the Department of Labor’s Occupational Safety and Health Administration (OSHA) will formulate and enforce this new rule as a Temporary Emergency Standard (ETS).
Congress created OSHA in 1970 to ensure safe and healthy working conditions for workers by establishing and enforcing such standards. The agency can promulgate these regulations and enforce them immediately if there is a “serious danger” to workers. For example, it released an ETS for all healthcare workers in June, stating that “employee exposure to SARS-CoV-2, the virus that causes COVID-19, poses a serious danger to workers in the workplace. health establishments ”.
Field says the president might expect to face challenges in trying to implement these mandates for private employers, and he expects the OSHA authority to issue emergency standards. be tested.
“OSHA has only tried a dozen times in its history” to issue these standards, says Field, and only six have come into effect. “Almost half of them have, in fact, been invalidated. However, he says the current state of the COVID-19 pandemic meets the criteria for a national medical emergency.
“The Biden administration has a pretty strong argument that a pandemic that has killed nearly 700,000 Americans, and now kills nearly 2,000 [Americans] per day, is a national emergency under the authority of OSHA, ”he said.
Another challenge the Biden administration will face will be whether the critically understaffed OSHA will be able to enforce the new rule.
The agency, Field says, has always been understaffed, but under the Trump administration, the number of workplace safety inspectors has been reduced to the lowest level since the early 1970s.
OSHA now has approximately 800 safety and compliance inspectors who will be responsible for covering more than 100,000 private sector companies that will be affected by the new rule.
All mandates include religious and medical exemptions. In these cases, employers must give workers the choice between showing proof of vaccination and undergoing regular testing.
“I think it’s a bit of an abuse to call it a vaccine warrant. … It’s an option, ”Field said. “You don’t need to be vaccinated if you are getting tested weekly.”
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