(Reuters) -President Joe Biden's plan that requires more than 100 million Americans to be vaccinated against COVID-19 is based on a workplace rule rarely used with a history of being blocked in court, making it an inviting target for legal action. challenges from employers.
As part of President Biden's plan, presented on Thursday, private employers with 100 or more employees must ensure that their workers are fully vaccinated or produce a negative COVID-19 test each week.
The measure will be implemented through an emergency temporary standard, or ETS, issued by the U.S. Department of Labor & # 39 ;s Occupational Safety and Health Administration, which regulates workplaces. The rule is expected in the coming weeks, and it was not clear when it would take effect.
OSHA can implement an emergency standard when workers are exposed to a "serious danger" and the standard is needed to protect them. This allows the Agency to shut down the usual process of developing a standard, which is on average seven years.
The Republican National Committee and some Republican governors have already threatened to pass President Biden's vaccine plan, which also includes most federal employees and contractors and some health care workers.
While many large employers have said they plan to follow, some companies are also likely to sue.
"Some employers reflexively oppose OSHA," said Michael Duff, a professor at the University of Wyoming College of Law. "They will not like this precedent."
Opponents can argue that a serious danger, which is not defined in the law, does not exist at national level because the current increase in cases of COVID-1
Cases of the disease remain stubbornly high in the United States and job growth and other signs of economic health decline as hospitals fill up.
“COVID is new and has been a serious danger in the workplace. I believe that the agency has a solid legal basis here, says Debbie Berkowitz, a former senior official at OSHA.
There is not much precedent for a temporary emergency standard.
Before the pandemic, OSHA issued only nine temporary emergency standards – and the last was in 1983. Courts blocked or stopped four of them and partially abandoned another, according to a report by the Congressional Research Service. employment counsel for the nonprofit Arlington, Virginia-based HR Policy Association, which examines general policy issues for large employers.
OSHA conducted an ETS in June to address COVID-19 for healthcare. It was challenged in court by two unions who wanted the standard to be extended to other industries.
The union's lawsuit is pending in the U.S. District Court of Appeals.
After issuing its emergency standard in June, OSHA invited comments on whether ETS should become a final rule. The American Hospital Association called for the standard to be withdrawn, claiming that COVID-19 was not a serious hazard in the workplace because studies showed that such infections were more likely to occur in the community.
U.S. Labor Secretary Marty Walsh said in June that the standard was aimed at the most vulnerable workers.
OSHA's mandate may also be vulnerable to legal challenges as months have passed since vaccines became widely available and it may be difficult for the agency to explain why there is a serious danger now, but there was not one earlier this year, says James Sullivan of the law firm Cozen O & # 39; Connor PC, which represents employers.
The courts can also state that the mandate threshold of 100 employees is arbitrary, which gives reason to annul the rule, according to Sullivan.
The Biden administration can hope that all defeats in court will come after many employers have started following the rule and millions of people have been vaccinated, Mr Sullivan said.
If employers do not comply, the fines are potentially large, $ 14,000 for each employee in conflict.
"It can result in very nasty math," says Eric Hobbs, employment lawyer with Ogletree, Deakins, Nash, Smoak & Stewart P.C.