Biden Asks OSHA to Order Vaccine Mandates at Large Employers
“I think that the Department of Labor probably is in good stead to be able to justify its mandate for health and safety reasons for the workers,” said Steve Bell, a partner at the law firm Dorsey & Whitney who specializes in labor and employment.
“They’ve got a broad pretty solid basis for saying: ‘We’re here to protect the workers, and this is part of our purview, and we think that this is something that will protect employees,’” he said.
OSHA has the authority to quickly issue a rule, known as an emergency temporary standard, if it can show that workers are exposed to a grave danger and that the rule is necessary to address that danger. The rule must also be feasible for employers to enforce.
Such a standard would pre-empt existing rules by state governments, except in states that have their own OSHA-approved workplace agencies — about half the states in the country. States with their own programs have 30 days to adopt a standard that is at least as effective, and that must cover state and local government employees, such as teachers. Federal OSHA rules do not cover state and local government employees.
The regulation is expected to be challenged in court by employers and perhaps even some states. But the legal basis for a state challenge is likely to be weakest in states that are directly within OSHA’s jurisdiction. Among them are some of the states that have been hardest hit by Covid-19 recently and where politicians have been resistant to mandates — such as Texas and Florida.
The U.S. Chamber of Commerce, the business lobby, said in a statement that it “will work to ensure that employers have the resources, guidance and flexibility necessary to ensure the safety of their employees and customers and comply with public health requirements.” Another major business advocacy group, the Business Roundtable, said it “welcomes” the Biden administration actions, including the requirement that companies offer paid time off for workers to get vaccinated.
The Culinary Workers Union, which represents 57,000 workers in Nevada, said “stricter” vaccine mandates were “the only way we see a full recovery possible.”