President Joe Biden's upcoming mandate that most U.S. workers either get vaccinated against COVID-19 or get tested weekly will most certainly face legal pushback. But labor and employment lawyers say those challenging the standard could have a tough time winning their cases.
“Inevitably, there will be ready plaintiffs to challenge this,” Rutgers University employment law professor Stacy Hawkins said about Biden’s announcement Thursday directing the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to adopt the new regulations for private sector U.S. employers with more than 100 workers.
The new, yet-to-be-seen rule, called an emergency temporary standard, would apply to approximately 100 million U.S. workers and about two-thirds of U.S. employees, according to the White House. Federal employers and contractors would be required to get vaccinated, with no testing option alternative.
While company executives have widely embraced the new directive, and already rolled out their own vaccination requirements, some Republican governors and the Republican National Committee have warned the Biden administration to expect a fight. Georgia’s Republican governor, Brian Kemp, and South Dakota’s Republican governor, Kristi Noem, have both vowed to combat the new rule.
'Various challenges with various strengths and weaknesses'
The challenges from state governors and attorneys general could potentially allege that Biden’s directive violates the separation of powers between the executive, judicial, and legislative branches, according to Condon McGlothlen, a partner with Seyfarth’s labor and employment practice group. Challengers could also argue that the rule interferes with a state's right to set health care policy.
“I think we'll see various challenges with various strengths and weaknesses,” he told Yahoo Finance.
A separation of powers challenge could argue that Biden, by directing OSHA to act, is trying to overstep his executive authority to accomplish what he could not or did not try to get through Congress, without even officially issuing an executive order. Meanwhile, McGlothlen said, a state’s rights challenge could argue that state and local authorities typically make decisions about public health.
Still, he said, “I would be surprised to see those challenges prevail — but I’m sure they will be brought."
“It would be clearly problematic for Biden to try to do this by executive order,” Hawkins said, pointing out the more narrow opening that his unofficial directive to OSHA provides for plaintiffs looking to challenge the measure.
Another anticipated challenge is from state governors who argue that OSHA’s rule deprives citizens of personal liberty, in violation of the 14th Amendment. However, because the emergency temporary standard is directed at corporations rather than individuals, it's more likely to survive legal scrutiny. For decades, Hawkins said, courts have failed to extend robust liberty interests to corporations.
Opponents of the emergency rule could also challenge whether it exceeds OSHA's authority under the Occupational Safety and Health and Act of 1970, according to Hawkins.
“One of the challenges will surely be that [the new rule] exceeds their rule-making power,” she said.
Opponents could argue that an emergency temporary standard shouldn't be deployed to address the spread of COVID-19 since epidemiologists have predicted it will be around for some time. "If anything, we should be coming up with a more long-term strategy, and we’ve had a lot of time,” Hawkins speculated about the possible argument.
Still, challenges are not insurmountable. As noted by the law firm Beveridge & Diamond, prior to OSHA’s emergency temporary standard for health care workers issued in June, the agency had promulgated emergency rules nine times, and among them, five were stayed, or vacated in part, under court challenges. According to the Congressional Research Service, prior to the June rule, OSHA had last attempted to use the rule-making authority in 1983.
'The testing alternative makes it much more palatable'
OSHA’s new rule could potentially implicate Title VII of the Civil Rights Act's protections against discrimination based on religion, as well as protections under the Americans with Disabilities Act.
So far, private sector employers have been advised that any vaccine mandates they impose on their workforce should accommodate those who decline vaccination for medical or religious reasons.
Courtney Malveaux, co-leader of Jackson Lewis’ workplace safety and health practice group, said that because the new regulation is expected to offer a testing alternative to vaccination for those workers, he suspects it will pass legal scrutiny.
“To my knowledge, there is no sincerely held religious belief or disability that prevents testing,” Malveaux said. “If there is, I haven't heard of it, so I think the testing alternative makes it much more palatable, legally.”
In addition to the certainty of legal challenges, the rule will almost certainly face delays beyond the "few weeks" that the White House has predicted. The rule may also look different from what Biden announced.
Case in point: OSHA, known to be under-resourced, announced its decision to require vaccination for health care workers in March and finally published its rule in June, Malveaux said. “And then what did come out was far, far different from what the stated intent was,” he added.
For their part, opponents of Biden's vaccine mandate will have to see what the final emergency rule looks like before they craft their legal challenges.
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.