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 States, companies, trade groups, civil liberty advocates and
religious organizations are expected to rush to court with demands
to stop the mandate in its tracks. Two dozen Republican state
attorneys general have already vowed to use "every legal option" to
fight the mandate and 40 Republican lawmakers said on Wednesday they
were preparing their own challenge.
Details of the vaccine and testing requirements for private
employers remain under wraps. The administration has said that the
rule is coming and that it requires certain businesses to "develop,
implement and enforce" a mandatory policy that allows employees to
either choose to get vaccinated or undergo regular testing and wear
a face covering at work.
For opponents, the general principle could not be more clear: the
administration's zeal for fighting the pandemic with vaccinations
and testing has trampled the law and the Constitution.
"There will be so much litigation it will never see the light of
day," said Josh Blackman, a professor at South Texas College of Law
Houston.
Some legal experts, however, said protecting against a historic
public health crisis provides a compelling justification for the
mandate against constitutional challenges that claim it infringes on
individual or state rights.
COVID-19 vaccine requirements by colleges, cities, states and
companies have generally been upheld. The Supreme Court said on
Friday that Maine could impose its mandate on healthcare workers,
even without the usual religious exemptions.
However, the national vaccine and testing rule, which will likely
run hundreds of pages, will differ in important ways from existing
vaccine requirements.
It will be issued as an emergency temporary standard (ETS) by the
Occupational Safety and Health Administration (OSHA), which
regulates workplace dangers. Businesses with at least 100 employees
must enforce the rule on their staff or face penalties.
To issue an ETS, OSHA must show there is a "grave danger" in
workplaces, and it needs to justify that emergency rule as a
necessary response.
A White House spokesperson did not comment for this story. White
House Press Secretary Jen Psaki has said a pandemic that has killed
over 740,000 Americans qualifies as a "grave risk to workers." The
Department of Labor declined to comment.
An average of 1,100 Americans are still dying daily from COVID-19,
according to the latest U.S. data, the vast majority of them
unvaccinated.
However, critics expect the OSHA rule to be vulnerable to legal
attacks.
COVID-19 infections are trending down, some 70% of U.S. adults are
fully vaccinated and treatments for the disease have improved,
potentially undermining the grave danger claim.
[to top of second column] |
 "I think there's an issue as to whether they can
show that in every business, in every industry,
every employer that has more than 100 employees,
there is a grave danger from COVID," said Scott
Hecker, an employment attorney with Seyfarth
Shaw, which represents businesses.
Or, as the National Retail Federation described
it in a letter to Labor Secretary Marty Walsh,
"workers face the danger of COVID-19 wherever
they go ... because they are human beings going
about the world, not because they go to work."
OSHA has convinced courts to uphold emergency
standards in the past with evidence that as few
as 80 lives would be saved. It will also be able
to argue that masking and other COVID-19 safety
measures proved no match for the extremely
contagious Delta variant, necessitating the
current rules.
 "The fact that a person can be exposed to the
COVID virus outside of the person's place of
employment does not eliminate OSHA's authority
to regulate," Sidney Shapiro, a law professor at
Wake Forest University, told a Congressional
hearing last week.
Republican governors and right-wing talk show
hosts have waged a political war against vaccine
mandates and mask wearing, hoping to galvanize
voters against Democratic President Joe Biden.
Vaccine mandates have been effective at
shrinking the ranks of the unvaccinated,
although they have also touched off protests,
and employers worry they could worsen a national
labor shortage.
Mandates on individuals have a long history and
have been upheld by courts for more than a
century, but they have been imposed by local and
states governments, not Washington, which is
restrained by the U.S. Constitution.
Critics of the mandate will argue it interferes
with traditional states' roles, namely,
regulating healthcare within their boundaries.
OSHA is also fighting history. The agency has
issued 10 ETS over its 50 years. Of the six that
were challenged in court, only one survived
entirely intact.
In the meantime, a huge number of U.S. employers
will be left dealing with an uncertain outcome
of the legal challenges, even as many focus on
achieving compliance.
Mike Bennett, the vice president of human
resources for Cianbro, a Maine construction
company with 4,000 employees, said he is
planning to carry out the OSHA rule.
"Unless something comes from the federal
government that says 'pause until further
notice,' we'll continue to go down the road that
this is coming," he said.
(Reporting by Nandita Bose in Washington and Tom
Hals in Wilmington, Delaware, Editing by Chris
Sanders, Amy Stevens and Bill Berkrot)
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