Legal Challenges to Biden’s Vaccine Mandate Are Likely, Law Experts Say

President Biden’s new vaccine mandate for certain businesses has prompted various reactions from business leaders and organizations. But it remains to be seen how and if the mandate will be enforced.

The new rule, which also gives employees the option for weekly COVID-19 testing instead of the vaccine, could impact about 80 million Americans and will be enforced by The Department of Labor’s Occupational Safety and Health Administration (OSHA). Federal employees and employees of all federal contractors will be required to get vaccinated and will not have the option to test.

OSHA will enact the rules as an Emergency Temporary Standard (ETS), an acceleration measure that has only been used 10 times in the organization’s more than 30-year history. Once the mandate is formally issued, it will be in effect for six months and will then be subject to a formal rule-making process through OSHA to make it permanent. However, the mandate will be subject to challenges from courts during this entire process.

“It is almost a certainty that once the ETS comes out, someone will challenge it before that six-month rule making period expires,” said Anthony Mingione, an employment lawyer and partner in the New York law firm Blank Rome.

To issue an ETS, OSHA needs to prove two elements: that workers are exposed to a grave danger, and that the mandate is necessary to address that danger. Challenges from courts will largely center on these two elements, with OSHA having to prove that the current state of the pandemic constitutes a grave danger for employees.

“This becomes an issue of the public safety outweighing individual liberties,” explained Helen Rella, an employment and labor lawyer at Wilk Auslander. She added that employees will likely have the option to request reasonable accommodations related to disabilities or sincerely held religious beliefs for exemption from the vaccine.

Another question that awaits to be seen is if businesses can reasonably enforce these mandates. According to Mingione, court challenges might also center around this question.

It is unclear who would pay for weekly tests as well as time off for those employees who opt out of the vaccine. It is also uncertain if businesses are expected to maintain records on employees’ vaccination and testing statuses, as it could be a burden for large businesses with thousands of employees.

Retailers have already expressed concerns regarding the feasibility of implementing the new mandate. In a statement last week, the president Retail Industry Leaders Association (RILA) Brian Dodge said the new mandate would be a “colossal undertaking.”

“While we await more details about the requirements, it is essential that the Administration understand that requiring large employers to mandate vaccination of all employees or produce a negative test is a colossal undertaking,” he said. “Coordination with industry and all levels of government is essential to avoid a chaotic and counterproductive situation. Further, testing capacity is already stressed and must be scaled immensely to meet the enormous demand that will result from these new requirements.”

The National Association of Manufacturers president and CEO Jay Timmons noted the importance of having a mandate than can be reasonably enforced.

“We look forward to working with the administration to ensure any vaccine requirements are structured in a way that does not negatively impact the operations of manufacturers that have been leading through the pandemic to keep Americans safe,” Timmons said. “It is important that undue compliance costs do not burden manufacturers, large and small alike.”

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