WASHINGTON (The Hill) — The Biden administration is bracing for an onslaught of challenges to its coronavirus vaccine-or-test mandate for private sector businesses.
Administration officials insist they are on solid legal footing, but it’s not stopping business groups, religious organizations and GOP state attorneys general from filing a barrage of lawsuits or Republican lawmakers from threatening legislative actions.
The Labor Department on Thursday released the sweeping vaccine-or-test mandate, which President Biden had previously announced was coming. The requirement applies to businesses with at least 100 employees, and the agency set a Jan. 4 deadline for companies to comply.
Biden has indicated he is running out of patience with Americans who refuse to get vaccinated against the coronavirus, and the rule is meant to force the issue in order to make workplaces safer.
“Vaccination is the single best pathway out of this pandemic. And while I would have much preferred that requirements not become necessary, too many people remain unvaccinated for us to get out of this pandemic for good. So I instituted requirements – and they are working,” Biden said in a statement.
Within hours of the rule’s publication on Thursday, GOP governors and attorneys general promised lawsuits were forthcoming. By Friday, nearly all of them had either filed their own suit or joined an existing one.
Republicans are framing the battle over vaccination mandates as a debate over civil liberties.
A coalition of 11 states led by Missouri Attorney General Eric Schmitt (R), who is running for Senate, argued the Occupational Safety and Health Administration (OSHA) doesn’t have the authority to put in place such sweeping federal public health regulations and that the rule unconstitutionally infringes on states’ powers.
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 Morrisey (R) filed a similar lawsuit in the 6th Circuit and asked for a stay of the requirement while the lawsuit is being argued.
In the south, Alabama, Florida and Georgia joined together, 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 deputy press secretary Karine Jean-Pierre on Friday said the administration is “very confident” the mandate can withstand legal challenges.
“The Department of Labor has a responsibility to keep workers safe and the legal authority to do so,” she added. “We believe we have the authority to do this, the Department of Labor. And again, this is about saving people’s lives … and making sure their workplace is safe.”
In an interview with McClatchy shortly after the rule was published, Labor Secretary Marty Walsh said state attorneys general have the right to sue but that he can’t worry about the possibility that a judge could issue an injunction stopping enforcement.
“I’m not gonna really respond to hypotheticals. If that’s the route that the attorney general in Missouri or anyone takes, that’s the route they’re going to take, but the federal government has every right, every right, to put emergency temporary standards out to private businesses in the country,” Walsh said.
At the heart 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 Labor secretary deems that employees are “exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful.”
Jeffrey Kopp, an employment lawyer and partner at Foley & Lardner, said the White House and OSHA have broad authority to enforce the requirements.
“OSHA did an exceptional job of validating its authority. I think in the ETS, they went to great lengths to detail the need for an emergency temporary standard,” he said. “It’s going to be a tough hill for challengers.”
But the lawsuits from conservatives argue there is no grave danger. For example, the Republican National Committee (RNC) on Friday said the administration’s decision to impose a deadline two months away 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 holidays in January?” RNC Chairwoman Ronna McDaniel said Friday on Fox News. “It does seem politically motivated and takes away from the argument that Biden is making that it is a huge public health issue.”
West Virginia’s coalition argued that OSHA’s authority was limited to exposures from toxins in the workplace and did not extend to a virus circulating widely in society.
One potential advantage for the White House is that private businesses can give employees an option for regular testing instead of getting vaccinated.
“When you go in for an injunction, essentially you have to show that there’s irreparable harm that can’t be fixed with money. You could make the argument that if you have to be vaccinated, you’re suffering the irreparable harm. By offering the testing alternative, people still have the choice and the ability to choose to not be vaccinated,” King & Spalding employment lawyer Amanda Sonneborn said.
OSHA has used its ETS power nine times. Six of those were challenged, and only one withstood the scrutiny. Still, Sonneborn said the administration is in uncharted waters and that there is no precedent, so it’s hard to predict how different courts may rule.
“The workplace is certainly still not back to normal,” she said. “I can’t point to some other time or precedent that has been comparable. There has been challenges to OSHA ETS in the past, but this one is so unique that it’s almost not comparable in any way. Either way, I think both sides are going to argue that it’s an extreme situation.”
Outside of legal challenges, Republicans in Congress are also taking swipes at the new requirements. House GOP appropriators have introduced legislation that would block the administration from using federal money for enforcement.
In the Senate, Republicans led by Sen. Mike Braun (Ind.), the ranking member of a Senate committee on employment and workforce safety, are planning to use the Congressional Review Act to force a vote on a resolution disapproving of the rule.
It must be passed by the Senate and the House, both of which Democrats control, and be signed into law by the president. If Biden vetoes it, Republicans would need a two-thirds majority in each chamber to override it.
It’s a tall task, but forcing a vote could put vulnerable incumbents in a tough spot.
While no congressional Democrats have spoken out against the rule, Democratic Kansas Gov. Laura Kelly on Friday said she doesn’t think a mandate is the best solution for her Republican-leaning state.
Kelly, who is facing a difficult reelection next year, said she would seek an “alternative” plan.