White House facing wave of challenges to coronavirus vaccine rules


WASHINGTON (The Hill) – The Biden administration is gearing up for a series of challenges for its mandate of coronavirus vaccine or testing for private sector companies.

Administration officials insist they are on a solid legal footing, but that does not prevent GOP business groups, religious organizations and attorneys general from filing a series of lawsuits or bringing them back. Republican lawmakers to threaten legislative action.

The Labor Department on Thursday released the broad vaccine or test mandate, which President Biden had previously announced is coming. The requirement applies to businesses with 100 or more employees, and the agency has set a Jan. 4 deadline for businesses to comply.

Biden has indicated he is lacking patience with Americans who refuse to be vaccinated against the coronavirus, and the rule aims to force the problem in order to make workplaces safer.

“Vaccination is the best way out of this pandemic. And while I would have much preferred that the requirements not become necessary, too many people remain unvaccinated for us to come out of this pandemic for good. So I instituted requirements – and they work, ”Biden said in a statement.

Within hours of the rule’s publication on Thursday, GOP governors and attorneys general promised legal action. By Friday, almost all had either lodged their own complaint or joined an existing body.

Republicans present the battle over vaccination mandates as a debate over civil liberties.

A coalition of 11 states led by Missouri Attorney General Eric Schmitt (right), Senate candidate, argued that the Occupational Safety and Health Administration (OSHA) lacks the power to make regulations radical federal public health issues and that the rule unconstitutionally encroaches on state powers.

Some businesses and organizations, including the Christian Employers Alliance and the Home School Legal Defense Association, have joined the Missouri petition.

A separate group led by West Virginia Attorney General Patrick Morrisey (R) has filed a similar complaint in the 6th Circuit and requested a stay of the requirement while the trial is ongoing.

To the south, Alabama, Florida, and Georgia came together, as did Louisiana, Mississippi, South Carolina, Texas, and Utah.

Despite the wave of litigation, White House officials have always expressed confidence that the requirements are legal.

White House deputy press secretary Karine Jean-Pierre said on Friday that the administration was “very confident” that the mandate could withstand legal challenges.

“The Ministry of Labor has the responsibility to ensure the safety of workers and the legal authority to do so,” she added. “We think we have the power to do it, the Ministry of Labor. And again, it’s about saving 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 prosecute, but he can’t be concerned that a judge can issue an injunction terminating the application.

“I’m not really going to answer the assumptions. If that’s the way the Attorney General of Missouri or anybody else is going, that’s the road they’re going to take, but the federal government has every right, every right, to impose Temporary emergency standards to private businesses nationwide, ”Walsh said. noted.

At the heart of the challenges is OSHA’s power to issue Temporary Emergency Standards (ETSs), which bypass the normal regulatory process and come into effect immediately if the Secretary of Labor determines that employees are “exposed to harm.” serious danger of 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 powers to enforce the requirements.

“OSHA has done an exceptional job in validating its authority. I think in the ETS they went to great lengths to detail the need for a temporary emergency standard, ”he said. “It will be a tough hill for the challengers.”

But the Conservatives’ lawsuits say there is no grave 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, so critical to our public health and safety, that we’re going to postpone it until after the January recess?” RNC President Ronna McDaniel said Friday on Fox News. “It seems politically motivated and takes away the argument made by Biden that this is a huge public health issue.”

The West Virginia coalition argued that OSHA’s authority was limited to workplace toxin exposures and did not extend to a virus circulating widely in society.

One potential benefit for the White House is that private companies can give employees the option of getting regular tests instead of getting vaccinated.

“When you apply for an injunction, you basically have to show that there is irreparable harm that cannot be fixed with money. You could argue that if you need to be vaccinated, you will suffer irreparable harm. By offering the alternative to the test, people still have the choice and the ability to choose not to be vaccinated, ”said King & Spalding employment lawyer Amanda Sonneborn.

OSHA has used its ETS power nine times. Six of them have been challenged and only one has withstood scrutiny. Still, Sonneborn said the administration is in uncharted waters and there is no precedent, so it’s hard to predict how different courts may rule.

“The workplace is certainly not back to normal yet,” she said. “I cannot cite any other time or precedent that was comparable. There have been challenges with OSHA ETS in the past, but this one is so unique that it almost cannot be compared in any way. Either way, I think both sides will argue that this is an extreme situation.

Apart from legal challenges, Republicans in Congress are also grappling with the new demands. House GOP owners introduced legislation that would prevent the administration from using federal money for enforcement.

In the Senate, Republicans led by Sen. Mike Braun (Ind.), A senior member of a Senate committee on employment and workplace safety, consider using 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 controlled by Democrats, and be promulgated by the President. If Biden vetoed it, Republicans would need a two-thirds majority in each chamber to overturn it.

It’s a daunting task, but forcing a vote could put vulnerable incumbents in a difficult position.

Although no Congressional Democrats have spoken out against the rule, Kansas Democratic Governor Laura Kelly said on Friday that she didn’t think a term was the best fit for her Republican-leaning state.

Kelly, who faces a tough re-election next year, said she would seek an “alternative” plan.

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