President Joe Biden's upcoming mandate that most U.S. workers either get tested against COVID - 19 or get vaccinated weekly will most likely face legal pushback. But labor and employment lawyers say those challenging the standard could have a tough time winning their cases.
Inevitably, there will be ready plaintiffs to challenge this, Rutgers University employment law professor Stacy Hawkins said about Biden's announcement on Thursday directing the U.S. Department of Labor Occupational Safety and Health Administration OSHA to adopt the new regulations for private sector U.S. employers with more than 100 workers.
The new, yet to be voted upon rule, called an emergency temporary standard, would apply to approximately 100 million U.S. workers and about two-thirds of U.S. employees, according to the White House. Federal employers and contractors would be required to get vaccinated, with no testing option alternative.
While company executives have actively embraced the new directive and are already implementing their own vaccination requirements, some Republican governors and the Republicans National Committee have warned Biden administration to expect a fight. Georgia Governor Kristi Noem and South Dakota Republican Governor, Brian Kemp, have both pledged to fight the new rule.
'Various challenges with various strengths and weaknesses’
The challenges from state governors and attorneys general could potentially allege that Seyfarth's directive violates the separation of powers between the executive, judicial, and legislative branches, says Condon McGlothlen, a partner with Biden. Challengers could also argue that the rule interfere with a state's right to set health care policy.
I think we'll see various challenges with various strengths and weaknesses, he told Yahoo Finance.
A separation of powers challenge could argue that Biden, by overstepping OSHA's power to act, is trying to accomplish what he could not or did not try to do directly pass through Congress, without even officially issuing an executive order. Meanwhile, McGlothlen argued that a state's rights challenge could argue that state and local authorities typically make decisions about public health.
Still, he said, I would be surprised to see those challenges prevail — but I m sure they will be brought. It would be helpful for Biden to try to do this by executive order, Hawkins said, pointing out the more narrow opening that his unofficial directive to OSHA provides for plaintiffs looking to challenge the measure.
Another expected challenge is state governors who argue that the OSHA rule deprives citizens of personal liberty in violation of the 14th Amendment. Because the temporary emergency standard is directed to individuals rather than corporations, it's more likely to survive legal scrutiny. For decades, Hawkins said, courts have failed to extend robust liberty interests to corporations.
Opponents of the emergency rule could also challenge whether it exceeds OSHA's authority under the Occupational Safety and Health Act of 1970, according to Hawkins.
One of the challenges will surely be that the new rule exceeds their rule-making power, she said.
Opponents could argue that an emergency temporary standard shouldn't be deployed to address the spread of COVID - 19 since epidemiologists have predicted it will be around for some time. We should be coming up with a better strategy and we ve had a lot of time, Hawkins speculated about the possible argument.
Ive and several employers have been advised so far that any vaccine mandates they impose on their workforce should accommodate those who declined vaccination for medical or religious reasons.
Courtney Malveaux, co-leader of Jackson Lewis workplace safety and health practice group, said that because the new regulation is expected to offer testing alternative to vaccination for those workers, he suspects it will pass legal scrutiny.
To my knowledge, there is no sincerely held religious belief or disability that prevents testing, Malveaux said. If there is, I've never heard of it, so I think the testing alternative makes it much more palatable, legally. In addition to the certainty of legal challenges, the rule will almost certainly face delays beyond the few weeks that the White House has presided over. The rule could also look different than the Biden administration announced.
Case in point: OSHA, known to be under-resourced, published its decision to require vaccination for health care workers in March and finally declared its rule in June, Malveaux said. What then came out was far, far different from what the stated intent was, he added.
For their part, opponents of Biden's vaccine mandate have to see what the final emergency rule looks like before they craft their legal challenges.
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