President Joe Biden’s new vaccine requirements could apply to as many as 100 million Americans, or almost two-thirds of the American workforce, and have spawned a predictable pushback from a handful of Republican states — making them the latest frontier in the fight between the administration and state officials over how to address the ongoing pandemic.
Though the specific rules for the vaccine mandate have yet to be written, several Republican state officials have already said they intend to challenge them. Arizona’s attorney general announced Tuesday that the state is suing Biden and other administration officials on the grounds that the vaccine mandates are “unconstitutional.” South Dakota Republican Gov. Kristi Noem claimed the mandates are a “gross example of federal intrusion” and Georgia Gov. Brian Kemp called part of Biden’s plan a “blatantly unlawful overreach.”
As part of his plan to increase vaccinations, Biden last week directed the Labor Department to require all businesses with 100 or more employees to mandate that their workers are either vaccinated or tested for Covid-19 once a week.
Major business lobbies like the US Chamber of Commerce have been largely supportive of the proposed vaccine mandate. The AFL-CIO and a number of major labor unions have also come out in favor of the mandate, though there has been opposition from several law enforcement unions, some of whom have questions about how Biden intends to implement his plan.
Biden’s plan relies on the Department of Labor’s ability to issue “an emergency temporary standard” to protect workers from new hazards, as long as “employees are exposed to grave danger” and the standard “is necessary to protect” them from that danger. This power stems from the Occupational Safety and Health Act of 1970.
That authority, however, is rarely used and previous instances have been challenged in court. Before the coronavirus pandemic, this authority had not been used since 1983 when the courts struck down an emergency temporary standard on asbestos, according to a July 2021 report from the Congressional Research Service. In June 2021, the Occupational Safety and Health Administration, a regulatory agency within the Department of Labor, issued an emergency temporary standard outlining measures to protect healthcare workers at higher risk of exposure to Covid-19.
How the current situation stacks up against precedent
Legal experts who spoke to CNN suggested Biden’s mandate and OSHA’s new emergency temporary standard could face a tough fight ahead.
Whether the new mandate is lawful “will depend on how OSHA articulates the ‘grave danger’ in question here, and how the courts that are hearing the inevitable challenges view the matter,” labor and employment lawyer Brett Coburn, of Alston & Bird LLP, told CNN.
“Arguably, preventing the spread of Covid in workplaces provides the strongest justification for use of an emergency temporary standard that OSHA’s seen in its 50-plus year history,” said Lindsay Wiley, director of the Health Law and Policy Program at American University.
Josh Blackman, a South Texas College of Law professor who specializes in constitutional law, is less confident that OSHA’s authority to impose an emergency temporary standard is applicable to address the current situation.
“You’re basically trying to take an old statute and pour new life into it,” Blackman said. “I think often courts are skeptical when the government looks at this 50-year-old statute and finds the exact authority needed to address this sort of urgent crisis.”
According to Blackman, more lawsuits from states and other employers in response to Biden’s new vaccine requirements are likely and, as a result, “some judge somewhere is going to object to this practice and it’s going to be put on hold.”
In the interim, “I think the upshot is this will give some employers cover to impose a mandate that they would not have been able to otherwise,” Blackman said.
It’s worth noting that there’s legal precedent for vaccine mandates, though primarily in contexts other than employment.
“The Supreme Court already decided in 1905 in Jacobson v. Massachusetts that there is no constitutional right to evade a vaccination mandate calculated to protect the community,” Georgia State University College of Law professor Anthony Kreis told CNN. “This is why we can permissibly have vaccination requirements for children to attend school, for example.”
That 1905 Supreme Court decision is seen as the most relevant case supporting the legality of vaccine mandates. Even conservative Justice Neil Gorsuch has signaled that he would vote in favor of the Massachusetts vaccine mandate if the Jacobson case was before the court today.