On September 9, 2021, President Biden announced a plan to require all private employers with one hundred (100) or more employees to ensure that their workers are fully vaccinated against COVID-19, or produce a negative COVID-19 test each week. This vaccine mandate, part of a larger effort designed to require more than 100 million Americans to get vaccinated, will be implemented through an Emergency Temporary Standard (ETS) to be issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA).
To date, OSHA has not released draft regulations, though they are expected within the coming weeks. Once released, it is not clear when the mandate will take effect, but employers may be left with a very tight timeframe to come into compliance.
While many have praised the vaccine mandate as a necessary measure to curb the rampant spread of COVID-19 and the dangerous Delta variant, some view the mandate as an overreach of executive authority.
While we expect to see challenges to the vaccine mandate on constitutional grounds, we also anticipate that the challenges may be largely unsuccessful. Federal courts have routinely rejected constitutional challenges to vaccine mandates, provided that they are not discriminatory in nature. In fact, since the 1905 Supreme Court case Jacobson v. Massachusetts, courts have held that compulsory vaccination laws are not inconsistent with the tenets of the Constitution.
A stronger challenge to President Biden’s vaccine mandate concerns the validity of the ETS itself. Since its inception, OSHA has only issued ten (10) emergency standards, with varying levels of legal success, leaving the anticipated ETS vulnerable to legal challenge for a lack of precedent. In addition, OSHA is tasked with regulating workplace safety on a national level. If the vaccine mandate is not carefully tailored to address a clear national workplace safety risk, there could be grounds to invalidate the rule. Indeed, some argue that OSHA has no standing to enact a nationwide vaccine mandate where spikes in COVID-19 cases have varied considerably by region.
In any case, the forthcoming ETS is sure to be met with fierce legal challenges from state governments and private businesses alike. The attorney general of Arizona has already filed a lawsuit in an effort to prevent the vaccine mandate from taking effect, and attorney generals and governors from New Hampshire and South Dakota have promised similar legal action.
All this to say that businesses are understandably struggling with the decision of if/when/how they should roll out a vaccine mandate and testing requirements. The following are action items that employers with one hundred (100) or more employees should consider taking now: