The new mandatory vaccination requirements of the president of the United States have Republican governors threatening to sue. Joe Biden’s response: “Hit it.”
The government is bracing for another major clash between federal and state authority, and while many details of the rules are still unknown, Biden appears to be on solid legal ground to issue the guideline claiming employee safety, according to various experts interviewed by The Associated Press.
“My bet is that, regarding that regulatory authority, they have a very firm basis given the evidence that clearly indicates … the level of risk they represent (unvaccinated people), not only for themselves, but also for others. ”Said University of Connecticut law professor Sachin Pandya.
Republicans immediately criticized the mandate that could impact 100 million Americans, saying the government is exceeding its authority and vowing to sue. Private employers who resist the requirement may sue as well.
Texas Governor Greg Abbott called the mandate an “assault on private business,” while South Carolina Governor Henry McMaster vowed to “fight to the gates of hell to protect the freedom and livelihood of every person in South Carolina. ”. The Republican National Committee has also said it will sue the government “to protect Americans and their freedoms.”
Those cases could present another clash between federal and state authority as Biden’s Justice Department is already suing Texas over its new law that bans nearly all abortions in the state, arguing that it was enacted “in open defiance of the Constitution”.
The White House is preparing for legal challenges and believes that even if some of the mandates are overturned, millions of Americans will be vaccinated due to the new requirements, saving lives and preventing the spread of the virus.
Biden is enforcing his order with the Occupational Safety and Health Administration (OSHA), which is drafting a rule “in the next few weeks,” Jeffrey Zients, the House’s response coordinator, said Friday. Blanca to the COVID-19 pandemic. He warned that “if a workplace refuses to follow the standard, OSHA fines could be significant.”
The courts have upheld vaccination requirements as a condition of employment, both before the pandemic – in objections filed by health workers – and since the outbreak of the outbreak, said Lindsay Wiley, director of the Health Law and Policy Program at the American University in Washington.
Where Biden’s requirements may be most vulnerable to attack is in the question of whether the government followed the appropriate process to implement them, he said.
“The arguments that mandatory vaccination violates bodily autonomy or medical decision-making … have not been successful and I don’t see that changing,” Wiley said. “I think the objections whose results are the most difficult to predict will be those about whether due process was followed.”
Temporary emergency standards – under which the rules are being expedited – have been particularly vulnerable to legal challenges, Wiley said. But the risks presented by the coronavirus and the existence of a declared public emergency could put mandatory vaccination requirements on “a stronger foundation than anything past governments have tried to impose,” he added.
In fact, the question of whether a mandate is legally strong is independent of whether it will be ratified by justices, even by a conservative majority on the Supreme Court that has tended to generous interpretations of religious freedom and might try to ensure that any mandate has. consider objections based on faith.
Vaccination “has become politicized and there are a lot of Republican judges who might be hostile to regulation for political reasons,” said Michael Harper, a law professor at Boston University.
“I can imagine an unfortunate opinion trying to justify that political position by rejecting OSHA’s use against infectious disease rather than intrinsic workplace hazards,” Harper said in an email.
The rules call for all employers with more than 100 workers to force their employees to be vaccinated or tested weekly for the virus, a mandate that affects some 80 million people in the country. And the 17 million health facility workers who receive Medicare or Medicaid will also have to be fully vaccinated. Medicare is the federal medical assistance program for the elderly, while Medicaid is the medical assistance program for the poor or disabled.
Biden is also going to require vaccinations for all executive branch employees and contractors doing business with the federal government, with no option to simply submit to diagnostic tests. That covers several million more workers.
Only the Republican-controlled state of Montana has a law that directly contradicts the new federal mandate. The state passed the law this year, making it illegal for private companies to require vaccination as a condition of employment.
But University of Montana Constitutional Law Professor Anthony Johnstone said federal standards would be above state law. That means large employers in Montana that previously could not require their employees to be vaccinated will now be required to do so, even hospitals that are some of the largest employers in the state.
Since the rules are still being drafted and have not been published, experts say the key will be in the details. It remains to be seen exactly what the rule will or will not require employers to do and how it will take into account other rights that unvaccinated employees might claim, such as a right to disability consideration, said Pandya, the law professor.
For example – with the growing number of businesses and workers working fully from home – if the rules are written to include people who are not exposed to a traditional workplace, “there is certainly room for dispute there,” he said. Erika Todd, Sullivan & Worcester employment attorney in Boston.
Charles Craver, a professor of labor law at George Washington University, said the mandate poses “a sharp question” legally, but said the Biden administration has a legitimate argument that the requirement is necessary for workers to protect safety. of employees, customers and the public.
The thorniest issue, however, is how employers – and the courts – will deal with requests for exemptions by employers on religious and other grounds.
Although those exemptions could include an employee working from home, “you may have a situation where someone has to be present and you cannot provide the exemption because of the danger involved,” he said.
“I wouldn’t want to gamble if that was before the Supreme Court,” Craver said. “I could even imagine a court divided 5-4 and I wouldn’t bet on how I would vote.”
Richer reported from Boston. Iris Samuels contributed from Helena, Montana.