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 As part of Biden's plan, unveiled Thursday
https://www.reuters.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 short 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.com/world/
us/bidens-covid-vaccine-mandate-angers-republicans-libertarians-2021-09-10
to sue 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/world/
us/corporate-union-reaction-biden-vaccine-mandate-companies-
2021-09-09, some businesses are also likely to sue.
"Some employers reflexively oppose OSHA," said Michael Duff, a
professor at University of Wyoming College of Law. "They will not
like this precedent."
Opponents could argue a grave danger, which is not defined in the
law, doesn't exist on a national level as the current spike in
COVID-19 cases has been regional.
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 new and has been a grave 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.
[to top of second column] |
 Before the pandemic, OSHA
issued only nine emergency temporary standards -
and the last one was in 1983. Courts blocked or
stayed four of them and partially vacated
another, 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 Arlington, Virginia-based HR
Policy Association, which examines public policy issues for large
employers.
OSHA implemented an ETS in June to address COVID-19 for healthcare
settings. It was challenged in court by two labor unions which
wanted the standard expanded to cover other industries.
The unions' lawsuit 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 the 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.
U.S. Secretary of Labor 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 this year, said James
Sullivan of law firm Cozen O'Connor, who represents employers.
Courts also could find that the mandate’s 100-employee threshold is
arbitrary, providing grounds to invalidate the rule, according to
Sullivan.
The Biden administration may be hoping that 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 considerable,
at $14,000 for each employee in violation.
"That could result in some very nasty math," said Eric Hobbs, an
employment lawyer with Ogletree Deakins.
(Reporting by Tom Hals in Wilmington, Delaware, and Dan Wiessner in
New York; Editing by Noeleen Walder, Cynthia Osterman and Jonathan
Oatis)
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