Sept 13 Reuters : U.S. president Joe Biden's plan that requires more than 100 million Americans to be vaccioned against COVID 19 relies on a rarely used workplace rule with a history of being blocked in court, making it an inviting target for legal challenges by employers.
As part of Biden's planned Wednesday, the unveiled https:www.reuters.com com World Us biden-deliver - six-step plan-covid - 19 - pandemic 2021 - 09 - 09, private employers with 100 or more staff must ensure that their workers are fully vaccinated or produce a negative COVID - 19 test weekly.
The measure will be implemented through an emergency temporary standard, or ETS, issued by the U.S. Department of Labor's Occupational Safety and Health Administration OSHA, which regulates workplaces. The rule is expected in the coming weeks and it was not clear when it would take effect.
OSHA can implement an emergency standard when workers are exposed to a grave danger and the standard is needed to protect them. This allows the agency to cut the usual process for developing a standard, which averages seven years.
The Republican National Committee and some Republican state governors have already threatened: https: www.reuters.org. com world us Bidens-covid vaccine-mandate bidens-covid - opposition to sue -- conservatives -- libertarians - 2021 -- 09 -- 10 over Biden's vaccine plan, which also covers most federal employees and contractors and some healthcare workers.
While many large employers have said they plan to comply https: www.reuters.com. com world us corporate union anti-suicide drugs - vaccine-mandate - companies - 2021 09 - 09, some businesses are also likely to sue.
Some employers reflexively oppose OSHA, says Michael Duff, a professor at University of Wyoming College of Law. They can't like this precedent. Opponents could argue a regional danger, which is not specified in the law, doesn't exist on a national level as the current spike in COVID cases has been national (Mortal)
Biden said on Thursday that the country was losing patience with those who declined to get vaccinated, with just over 62% of Americans fully inoculated against COVID - 19.
Cases of the disease remain stubbornly high in the United States, and job growth and other signs of economic health are slowing as hospitals fill up.
COVID is grave and has been a new danger in the workplace. I think the agency is on solid legal ground here, said Debbie Berkowitz, a former senior OSHA official.
There is not much precedent for an emergency temporary standard.
Before the pandemic, OSHA issued only nine temporary emergency standards - the last one was in 1983. Courts partially blocked four of them and vacated one, according to a report by the Congressional Research Service.
It's a seldom-used approach, said Roger King, senior labor and employment counsel for the nonprofit HR Policy Association in Arlington, Virginia, which examines public policy issues for large employers.
OSHA and BLS deployed an ETS in June to address COVID'19 in healthcare settings. It was challenged in court by two labor unions that wanted the standard to be expanded to cover other industries.
The unions' litigation is ongoing in the U.S. Court of Appeals for the District of Columbia.
After issuing its June emergency standard, OSHA invited comments on whether ETS should become a final rule. The American Hospital Association urged withdrawing the standard, arguing that COVID 19 was not a grave danger at the job site since studies showed such infections were more likely to occur in the community.
Marty Walsh said in June that the standard was targeted at the most at-risk workers.
OSHA's mandate could also be vulnerable to legal challenges because months have passed since vaccines became widely available and it may be difficult for the agency to explain why there is a grave danger now, but there was not one earlier in this year said James Sullivan of the law firm Cozen O'Connor, representing employers.
Courts can also find that the mandate threshold of 100 - employees is invalid, providing grounds to invalidate the rule, according to Sullivan.
The Biden Administration is hoping any defeat in court comes after many employers begin to comply with the rule and millions of people are vaccinated, Sullivan said.
If employers don't comply, the fines are potentially substantial, at $14,000 for each employee in violation.
That could result in some very nasty math, said Ogletree Deakins, an employment lawyer with Eric Hobbs.