The Biden administration is preparing for an avalanche of challenges to its coronavirus test or vaccine mandate for private sector companies.
Administration officials insist they have a solid legal foundation, but that doesn’t stop Republican business groups, religious organizations and state attorneys general from filing a barrage of lawsuits or from Republican lawmakers threatening legislative action.
The Department of Labor on Thursday launched the broad vaccination or testing mandate, which President BidenJoe Biden Virginia’s defeat reveals Democrats’ struggle with rural voters After victory, Biden seeks political rebound Sunday shows progress: House passes bipartisan infrastructure bill; Democrats suffer electoral losses in Virginia MORE he had previously announced that he was coming. The requirement applies to companies with at least 100 employees that the agency set as a January 4 deadline for companies to comply.
Biden has indicated that he is running out of patience with Americans who refuse to get vaccinated against the coronavirus, and the rule is intended to force the problem to make workplaces safer.
“Vaccination is the best way out of this pandemic. And although I would have preferred that the requirements were not necessary, there are too many unvaccinated people for us to get out of this pandemic forever. So I instituted requirements, and they are working,” Biden said it’s a statement.
Within hours of the rule’s publication Thursday, Republican governors and attorneys general promised lawsuits would be filed. By Friday, almost everyone had filed their own lawsuit or joined an existing one.
Republicans frame the battle for vaccination mandates as a debate about civil liberties.
An 11-state coalition led by Missouri Attorney General Eric Schmitt (R), who is running for Senate, argued that the Occupational Safety and Health Administration (OSHA) does not have the authority to implement such broad federal public health regulations. and that the rule unconstitutionally infringes the powers of the states.
Some businesses and organizations, including the Christian Employers Alliance and the Home School Legal Defense Association, joined Missouri’s petition.
A separate group led by West Virginia Attorney General Patrick Morriesy (R) filed a similar lawsuit in the Sixth Circuit and requested a stay of the requirement while the lawsuit is being argued.
In the south, Alabama, Florida, and Georgia joined, as did Louisiana, Mississippi, South Carolina, Texas, and Utah.
Despite the wave of litigation, White House officials have consistently expressed confidence that the requirements are legal.
White House Under Secretary for Press Karine Jean-PierreKarine Jean-PierreBiden: Separated Migrant Families Under Trump ‘Deserve’ Compensation White House Says Biden Will Sign Infrastructure Bill As Soon As He Receives It 12:30 PM Report From The Hill: House Democrats Push For have the infrastructure bill vote MORE on Friday it said the administration is “very confident” that the mandate can withstand legal challenges.
“The Department of Labor has a responsibility to keep workers safe and the legal authority to do so,” he added. “We believe we have the authority to do this, the Department of Labor. And again, it’s about saving people’s lives … and making sure their workplace is safe. ”
In a interview with McClatchy shortly after the publication of the rule, the Secretary of Labor Marty walshMarty WalshBiden Administration and Stakeholders to Host Interagency Event on Economic Equity Michelle Wu Chosen as Boston’s First Mayor The No Surprises Act: A Long-Term Bill MORE He said state attorneys general have the right to sue, but cannot worry about the possibility that a judge could issue a court order to stop the execution.
“I’m not really going to answer the assumptions. If that’s the route that the attorney general in Missouri or anyone else is taking, that’s the route that they’re going to take, but the federal government has every right, every right, to put a temporary emergency standards to private companies in the country, “said Walsh.
At the center of the challenges is OSHA’s authority to issue Emergency Temporary Standards (ETS), which bypass the normal regulatory process and take effect immediately if the Secretary of Labor deems that employees are “exposed to serious danger by exposure to substances or agents that are determined to be toxic or physically harmful. ”
Jeffrey Kopp, a labor attorney and partner at Foley & Lardner, said the White House and OSHA have broad authority to enforce the requirements.
“OSHA did an exceptional job validating their authority. I think at the ETS, they did their best to spell out the need for a temporary emergency standard, “he said. “It’s going to be a tough hill for challengers.”
But the Conservatives’ lawsuits argue that there is no serious danger. For example, the Republican National Committee (RNC) said on Friday that the administration’s decision to impose a two-month deadline undermines the claim of an emergency.
“Isn’t it interesting that this is such an emergency, this is so critical to our public health and safety, that we are going to delay it until after the January break?” President of RNC Ronna McDanielRonna Romney McDaniel LIVE COVERAGE: Youngkin Wins Virginia; RNC Tied Run for New Jersey Governor Targets McAuliffe, Biden Campaign Event with Mobile Billboards Biden Says Infrastructure Bills Must Pass at ‘Tipping Point’ for US MORE he said Friday on Fox News. “He seems politically motivated and takes away the argument that Biden is making that it is a big public health problem.”
The West Virginia coalition argued that OSHA’s authority was limited to toxin exposures in the workplace and did not extend to a virus that was widely circulating in society.
One potential advantage for the White House is that private companies can offer employees the option of getting regular tests instead of getting vaccinated.
“When you apply for a court order, you basically have to show that there is irreparable damage that cannot be fixed with money. You could argue that if you have to get vaccinated, you are suffering irreparable harm. By offering the alternative trial, people still have the option and the ability to choose not to get vaccinated, ”said King & Spalding employment attorney Amanda Sonnebornshe.
OSHA has used its STD power nine times. Six of them were challenged and only one stood up to scrutiny. Still, Sooneborn said the administration is in uncharted waters and there is no precedent, making it difficult to predict how the different courts may fail.
“The workplace has certainly not returned to normal,” he said. “I cannot point to another moment or precedent that has been comparable. There have been challenges for OSHA ETS in the past, but this one is so unique that it is hardly comparable in any way. Either way, I think both sides are going to argue that it is an extreme situation. “
Outside of the legal challenges, Republicans in Congress are also attacking the new requirements. Republican appropriators in the House of Representatives have introduced legislation that would prevent the administration from using federal money to enforce the law.
In the Senate, Republicans led by Sen. Mike braunMichael Braun Republicans Will Challenge Biden Indiana Vaccination Mandate By Recruiting Unvaccinated Chicago Officers Republican Indiana Senator: Chicago Police Defying Vaccination Mandate ‘Deserve Respect’ MORE (Indiana), the highest-ranking member of a Senate committee on employment and job security, plans to use the Congressional Review Act (CRA) to force a vote on a resolution disapproving of the rule.
It must be approved by the Senate and House, both controlled by Democrats, and it must be enacted by the president. If Biden vetoes it, Republicans would need a two-thirds majority in each chamber to overturn it.
It’s a tall order, but forcing a vote could put vulnerable incumbents in a tough spot.
While no Democratic congresswoman has spoken out against the rule, Kansas Democratic Gov. Laura Kelly said Friday that she doesn’t think a term is the best solution for her Republican-leaning state.
Kelly, who faces a difficult re-election next year, said he would seek an “alternative” plan.