Are Biden’s vaccine mandates ‘unlawful’?
How the current situation stacks up against precedent
Legal experts who spoke to Fintech Zoom suggested Biden’s mandate and OSHA’s new emergency temporary standard could face a tough fight ahead.
Whether the new mandate is lawful “will depend on how OSHA articulates the ‘grave danger’ in question here, and how the courts that are hearing the inevitable challenges view the matter,” labor and employment lawyer Brett Coburn, of Alston & Bird LLP, told Fintech Zoom.
“Arguably, preventing the spread of Covid in workplaces provides the strongest justification for use of an emergency temporary standard that OSHA’s seen in its 50-plus year history,” said Lindsay Wiley, director of the Health Law and Policy Program at American University.
Josh Blackman, a South Texas College of Law professor who specializes in constitutional law, is less confident that OSHA’s authority to impose an emergency temporary standard is applicable to address the current situation.
“You’re basically trying to take an old statute and pour new life into it,” Blackman said. “I think often courts are skeptical when the government looks at this 50-year-old statute and finds the exact authority needed to address this sort of urgent crisis.”
According to Blackman, more lawsuits from states and other employers in response to Biden’s new vaccine requirements are likely and, as a result, “some judge somewhere is going to object to this practice and it’s going to be put on hold.”
In the interim, “I think the upshot is this will give some employers cover to impose a mandate that they would not have been able to otherwise,” Blackman said.
It’s worth noting that there’s legal precedent for vaccine mandates, though primarily in contexts other than employment.
“The Supreme Court already decided in 1905 in Jacobson v. Massachusetts that there is no constitutional right to evade a vaccination mandate calculated to protect the community,” Georgia State University College of Law professor Anthony Kreis told Fintech Zoom. “This is why we can permissibly have vaccination requirements for children to attend school, for example.”