: Biden on prospect of legal challenges to his vaccine mandate from Republican governors: ‘Have at it’


Desperate times are calling for desperate measures was the message President Joe Biden delivered Thursday when he announced a forthcoming vaccine mandate for businesses with at least 100 employees, along with all federal employees and government contractors. 

“We’ve been patient, but our patience is wearing thin, and your refusal has cost all of us,” Biden said.

See: Unvaccinated are 11 times likelier to die of COVID-19, says CDC

Biden said the Occupational Safety and Health Administration, a federal agency, is developing an emergency rule “to require all employers with 100 or more employees, that together employ over 80 million workers, to ensure their workforces are fully vaccinated or show a negative test at least once a week.”

As it stands, some 27% of the U.S. population that is eligible to get a COVID-19 vaccine has not received one as of Thursday, according to U.S. Centers for Disease Control and Prevention data.

“‘This is not about freedom or personal choice.’”

— President Joe Biden

Employers that don’t comply with the rule, which is not yet in effect nor even formally written, will be subject to a $14,000 fine per violation. OSHA did not immediately respond to MarketWatch’s inquiry regarding when the rule could take effect and how it will be enforced. 

“This is not about freedom or personal choice,” Biden said in his remarks on Thursday. “It’s about protecting yourself and those around you — the people you work with, the people you care about, the people you love.”

Employers who oppose the vaccine requirement — unvaccinated employees can instead be tested at least weekly for COVID-19, Biden said — face a potentially costly and uphill legal battle, should they wish to challenge the upcoming OSHA rule, employment attorneys told MarketWatch.

Asked Friday during a school appearance with first lady Jill Biden about his level of concern that his vaccine mandate would be challenged in court, the president said, “Have at it.”

‘Safe and healthy workplace

The Occupational Safety and Health Act was passed in 1970. It requires employers to provide “a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm,” according to OSHA. 

The agency, a branch of the Department of Labor granted statutory access to workplaces, has applied the law in the pandemic by requiring that employers enable workers to practice social distancing on the job and take other precautions to protect workers from contracting COVID-19.

From the archives (February 2020): Trump administration has dragged its feet on safety regulations that would protect health-care workers against coronavirus

The agency said it enforces such rules by inspecting workplaces — especially those that receive complaints of potential unsafe working conditions that may cause employees to contract COVID-19 or in cases where there is high transmission of the virus at a particular worksite. 

Can the feds enact a vaccine mandate?

OSHA will likely use the same logic to enact the vaccine mandate that Biden unveiled on Thursday, said David J. Pryzbylski, a partner at Barnes & Thornburg, a law firm with offices in 20 U.S. cities.

Pryzbylski said he was “flooded with calls” early Friday from clients inquiring about what the mandate could mean for their businesses, not how they can get around it. 

“If OSHA goes through the administrative process to formulate a rule and justify a rationale behind the rule, it might be legally difficult to ultimately get that rule overturned,” he added — especially as courts have historically given “deference to employment agencies.”

“Employers that don’t comply with the rule would be subject to a $14,000 fine per violation.”

“The concept that OSHA would issue a regulation that governs arguably health and safety in the workplace is probably the easiest way to go to some sort of vaccine mandate,” said Domenique Camacho Moran, a partner at the labor and employment practice of New York law firm Farrell Fritz.

“From an employer’s perspective, there will undoubtedly be challenges to this rule,” she added, but such challenges are likely to be “to be time-consuming and expensive.” Given that Biden’s plan offers weekly testing as an alternative to vaccination will make a challenge that much more difficult,” observed Moran.

On the other hand, “many employers were already thinking about how to manage the vaccine question, so this comes as a welcome direction,” Moran said. 

“‘Supreme Court precedent generally favors the president during a pandemic — a time of declared national emergency.’”

— Condon McGlothlen, an employment attorney at Seyfarth Shaw

Condon McGlothlen, an employment attorney at Seyfarth Shaw, a law firm with offices in 17 U.S. cities, sees matters differently. 

“The constitutionality of [Thursday’s] action is unclear, but Supreme Court precedent generally favors the president during a pandemic — a time of declared national emergency.”

At the same time “it is highly questionable whether the executive branch can mandate employees receive a vaccine approved [via] emergency-use authorization only,” McGlothlen added. So far only Pfizer PFE and partner BioNTech

have received the Food and Drug Administration’s full approval. Moderna

and Johnson & Johnson

shots continue to be administered in the U.S. under emergency-use authorizations. 

McGlothlen pointed out that healthcare providers administering those vaccines are required by federal law to inform recipients: “Under the EUA, it is your choice to receive or not receive the vaccine. Should you decide not to receive it, it will not change your standard of medical care.”

“This may not matter if the FDA approves vaccines besides Pfizer for full use in the next few weeks,” he said. “Unless and until that happens, however, it is highly questionable whether OSHA has authority to do what the president has directed.”

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