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Although the specific rules for the vaccines mandate have yet to be written, several Republican state officials have already said they intend to challenge them. The Arizona attorney general said Tuesday that the state is suing Biden and other administration officials on the grounds that the vaccine warrants were “unconstitutional.” South Dakota Republican Governor Kristi Noem
claims the warrants are a “glaring example of federal intrusion” and Georgia Governor Brian Kemp has called part of Biden’s plan “patently illegal overstepping.”
As part of his plan to increase vaccinations, Biden last week ordered the Department of Labor to require all companies with 100 or more employees to require their workers to be vaccinated or tested for Covid-19 once a week. .
Major business lobbies like the US Chamber of Commerce have broadly supported the proposed vaccine mandate. The AFL-CIO and a number of major unions have also spoken out in favor of the mandate, although there has been opposition from several law enforcement unions, some of whom question how Biden intends to implement. implement his plan.
Biden’s plan relies on the ability of the Department of Labor to issue “a temporary emergency standard” to protect workers from new hazards, as long as “employees are in serious danger” and the standard “is necessary to protect workers from further harm. protect them ”from this danger. This power derives from the Occupational Safety and Health Act of 1970.
This authority, however, is rarely used and earlier instances have been challenged in the courts. Prior to the coronavirus pandemic, this authority had not been used since 1983, when courts struck down a temporary emergency standard on asbestos, according to a July 2021 report from the Congressional Research Service. In June 2021, the Occupational Safety and Health Administration, a regulatory body of the Department of Labor, released an emergency temporary standard outlining measures to protect healthcare workers at higher risk of exposure to Covid-19 .
How the current situation compares to previous ones
Legal experts who spoke to CNN suggested Biden’s tenure and OSHA’s new temporary emergency standard could face an uphill battle ahead.
Whether the new mandate is legal “will depend on how OSHA articulates the” grave danger “at issue here, and how courts hearing the inevitable challenges view the issue,” the Labor and Law lawyer. Job Brett Coburn, of Alston & Bird LLP, told CNN.
“Arguably, preventing the spread of Covid in the workplace provides the strongest rationale for using a temporary emergency standard that OSHA has seen in its more than 50 years of work. ‘history,’ said Lindsay Wiley, director of the Health Law and Policy Program at American University.
Josh Blackman, a professor at the South Texas College of Law specializing in constitutional law, is less convinced that OSHA’s power to impose a temporary emergency standard is applicable to deal with the current situation.
“You’re basically trying to take an old law back and give it new life,” Blackman said. “I think the courts are often skeptical when the government looks at this 50 year old law and finds the exact authority needed to deal with this kind of urgent crisis.”
According to Blackman, further lawsuits from states and other employers in response to Biden’s new vaccine requirements are likely and, therefore, “a judge somewhere is going to oppose this practice and it is going to be. suspended “.
In the meantime, “I think the result is that this will give some employers cover to impose a mandate that they otherwise might not have been able to,” Blackman said.
It should be noted that there is legal precedent for immunization mandates, but primarily in contexts other than employment.
“The Supreme Court had already ruled in 1905 in Jacobson v. Massachusetts that there was no constitutional right to opt out of a vaccination mandate calculated to protect the community,” law professor Anthony Kreis told CNN at Georgia State University College. “That’s why we can legitimately have vaccination requirements so that children can go to school, for example.”
This 1905 Supreme Court decision is considered the most relevant case supporting the legality of vaccination warrants. Even Tory Judge Neil Gorsuch has indicated he will vote in favor of Massachusetts’ vaccination mandate if the Jacobson case is in court today.
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