President Joe Biden on Thursday announced he would be implementing a comprehensive plan designed to combat the spread of COVID-19 and the Delta variant. His strategy has already ignited a fierce debate across the country.
The primary sticking point is a sweeping vaccine mandate that would compel businesses to require their employees to be vaccinated or take a weekly COVID test. A law expert explained what’s entailed in a Business Insider report:
“The administration will require employers with more than 100 employees to mandate vaccines or weekly testing — a move that will affect more than 80 million workers. Federal employees, contractors of federal agencies, and staff at all healthcare facilities that receive funding from Medicare or Medicaid will also be required to show proof of vaccination.”
Republican lawmakers excoriated the president’s announcement and vowed to push back against it. GOP governors indicated they would take legal action against Biden’s executive order. This situation raises questions related to whether the president’s order will stand up to legal scrutiny and how the measure would impact businesses.
Will Biden’s order stand?
The president’s executive order is already being challenged by those arguing that the executive branch does not have the authority to enact such a comprehensive measure. The Washington Examiner’s Tiana Lowe noted that “legally speaking, the rule is dubious at best.” In her words:
“While the administrative state offers an unseemly amount of authority to the Labor Department in the name of workplace safety, legal challenges will likely range from the 14th Amendment to the Religious Freedom Restoration Act. Even in the case those challenges fail, the odds of a district court judge issuing a nationwide injunction are decent enough to render the rule a gamble.”
Brian Dean Abramson, a leading expert on vaccine law, discussed the legal challenges Biden’s order is sure to face with Business Insider. He indicated the first obstacle to the president’s agenda involves the Commerce Clause of the Constitution. This section grants Congress the authority to regulate commerce with foreign nations and between states. The issue that will be litigated will rest on whether the Occupational Safety and Health Administration (OSHA) “has the power to broadly mandate vaccines under the Commerce Clause.”
Abramson said: “If there was a Commerce Clause challenge and it succeeded, that would have the strongest impact toward eliminating the ability of the federal government to require broad vaccination mandates.”
Other vaccine exceptions
The second argument that could be made against Biden’s executive order involves how exemptions to the rule would be made for those who wish to remain unvaccinated. Abramson indicated that the “two most likely vaccine exemptions will be for those who have a religious opposition to the vaccine, and those who have a certain disability covered under the Americans with Disabilities Act.”
The issue would center on determining an appropriate accommodation for those who are exempted from the rule. Abramson pointed out that students exempted from vaccine requirements are typically not treated differently. However, COVID-19 could be a different matter altogether.
“The question of whether it’s discriminatory or burdensome is probably a stronger argument,” Abramson noted. “But it isn’t an argument that necessarily eliminates mandates.”
Abramson also said that even if this particular challenge is successful, it would not eliminate Biden’s mandate. It would only make them rewrite it in a way that might stand up to legal scrutiny.
Another issue involves those who are unvaccinated but have already been infected with the virus. These individuals have argued that they should not be forced to take the vaccination because they already have the COVID-19 antibodies in their system.
The vaccine mandate’s impact on business
Biden’s announcement comes as many different industries are feeling the economic pain coming from the Delta variant. The New York Times noted that his measures “will affect some 80 million workers.”
The Times also noted that “many companies were already moving toward mandates” but that many of these “have focused on white-collar workers, who tend to have higher vaccination rates.”
A recent Aon poll revealed that of the companies requiring vaccines, 48 percent indicated they allowed for religious exemptions and only seven percent said they would terminate an employee for remaining unvaccinated. But, the Times also noted that Biden’s mandate brings up a series of questions with which companies will have to contend:
- How will the government gather, store and track information on employee vaccinations?
- What penalties will companies face if they choose not to follow the new requirement?
- Does it apply to all workers, or only those going into an office?
- When will the new rules take effect?”
Where will this lead?
The Biden administration has been struggling to get more of the American population vaccinated against COVID-19. The Delta variant has also complicated matters. While most of those who succumb to COVID-19 are unvaccinated, there have been many breakthrough cases in which vaccinated individuals are infected.
It is possible that Biden’s mandate could result in more people getting vaccinated. However, it is not certain that his executive order will survive the legal assaults that will be lodged against it. Moreover, it is also possible that the mandate won’t move the needle significantly.
But for those who are hesitant about taking the injection, the mandate might add some pressure. The rule will require those who wish to remain unvaccinated to take a weekly COVID test, which could be an inconvenience for some. But after the legal battle that is sure to ensue, the conversation over mandates might also be altogether different in the near future.
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