President Joe Biden initiated a nationwide mandate to fight the COVID-19 pandemic on Thursday, ordering American employers with 100 or more workers to ensure their workforce is entirely vaccinated.
Biden’s six-part plan to counteract the delta variant is his most aggressive action he has taken yet. It is expected to affect nearly 80 million Americans, including government employees who also fall under the mandate.
But what are the consequences for someone who doesn’t comply? Is a failure to meet the mandate the same as breaking the law?
Many Republican governors oppose Biden’s orders and have threatened lawsuits. USA TODAY examines the intricacies of the mandate, which takes effect in the coming weeks.
Are mandates enforceable?
Biden’s pathway to enforce the mandate is through the Occupational Safety and Health Administration (OSHA), which can require businesses and large companies to put safety regulations in place to ensure the health and security of the people who work at a given company. No mandate has focused on employees like this, however; OSHA mandates have typically focused on work conditions at the property of the company. One exception is that OSHA has enforced companies requiring hepatitis B documentation, but that wasn’t technically a mandate.
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“This isn’t OSHA’s first foray into vaccine law, but Biden’s mandate is by far the most extensive in using OSHA as a vehicle for requirement,” said Brian Dean Abramson, a leading expert on vaccine law.
Abramson, a professor at Florida International University and author of Bloomberg Law’s “Vaccine, Vaccination, and Immunization Law,” told USA TODAY this is the most sizable federal vaccine mandate in the nation’s history. He noted that even smallpox mandates in the 19th century and early 20th centuries were enforced by the states.
In addition to the vaccine requirement for companies, employees are ordered to face weekly coronavirus testing should they not receive a vaccination. Businesses that do not comply with Biden’s directive could face fines of up to $14,000 per violation, the White House announced alongside the mandate, with OSHA enforcing the fine.
Is it legal to mandate COVID-19 vaccination? What will the blowback be?
While it is legal to enforce the mandate via OSHA, company CEOs can sue to block the measures. Republican governors have publicly condemned the bill more than any other public figures, but it would be company employers who hold the most ground to pursue legal action.
Employers could seek a nationwide injunction against OSHA, asking a judge to rule that the vaccine requirement doesn’t fall under the realm of other enforcements such as a leaky roof.
The most likely legal challenge to the president’s intended vaccine mandate falls in line with the Commerce Clause of the U.S. Constitution, which gives Congress the constitutional power to regulate commerce both with foreign nations and among the states. That will call into question whether OSHA can broadly mandate vaccines.
Many companies won’t immediately treat the mandate as law without their own internal investigation. Home Depot, as an example, issued a statement on the mandate, noting that the company was “evaluating these new developments” while not now requiring vaccinations.
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Is the punishment for breaking a mandate the same as disobeying a law?
Not exactly. The mandate is far more macro than it is micro, and it is a far cry from being the same as breaking the law.
Abramson said OSHA will not specifically fine or focus on people who are unvaccinated but more so frame it on the company’s responsibility. Where it gets complicated is when it comes down to the cost of coronavirus tests for people who choose not to be vaccinated.
“Overall, it’s important to know that this isn’t an absolute mandate,” he said. “Because you can still not get the vaccine and get COVID-tested. Does the company pay for that? Usually OSHA would put that on the company. And will the company show pushback to the extra cost?”
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Abramson expects there to be less viable broad-stroke lawsuits and foresees the nuances of the mandate to be targeted in the coming months. One of those nuances will be what a vaccine requirement looks like for those who fall under the Americans with Disabilities Act.
This article originally appeared on USA TODAY: Is Biden’s COVID vaccine mandate a law? Is it enforceable?