The Biden administration'sfaces a stiff legal test, with a federal appeals court set to consider multiple lawsuits challenging the regulations.
Although the Sixth Circuit Court of Appeals in Cincinnati, Ohio, has not yet scheduled a hearing, the case is likely to be expedited given its urgency. Under President Joe Biden's emergency order, starting January 4 some 84 million Americans who work for private companies with at least 100 employees must either get vaccinated againstor regularly get tested for the disease.
Although the Labor Department's Occupational Safety and Health Administration on Wednesday said that it has of the White House directive pending the Sixth Circuit's hearing of the case, the agency said it "remains confident in its authority to protect workers in emergencies."
Yet legal experts say plaintiffs arguing that the rule is arbitrary and that OSHA lacks authority to issue it have a solid case. Following are three key questions attorneys say could decide the vaccine rule's fate.
Does OSHA have the authority in this case?
The lawsuits challenging the OSHA rule — which have been consolidated as part of the case before the Sixth Circuit — generally argue that the mandate is overly broad and that its real aim is not to protect people in the workplace, but rather to pressure Americans to get vaccinated against COVID-19.
"Many different complaints were filed that raise many different legal challenges. The most important are the challenges that address the question about whether OSHA properly used its authority and whether it has authority in this area," said Wendy Parmet, a leading expert on health, disability and public health law and director of Northeastern University's Center for Health Policy and Law.
"I think the case for OSHA intervening here is very strong, but that doesn't mean the court will agree. We are a country divided over COVID measures, and we have a judiciary that is divided over these measures," she added.
Ohio attorney Martin Pinales said the case hinges on whether OSHA has the legal standing to require private companies to require the vaccine when the rule was never approved by Congress.
"This was an OSHA rule put in by the Biden administration. It was not confirmed by Congress, and the question is whether OSHA can require a mandate just by an executive order. It's a question of, procedurally, can it be done?" he said.
He added, "I think the key is not, 'Is the vaccine good or bad or should people be exempt.' The key is, does OSHA even have the authority to require it the way they put it into effect?"
Is the order too broad?
Attorneys also said the order as drafted may amount to legal overreach because it extends beyond the workplace. Through its executive powers, OSHA has the right to impose safety measures on workplaces. But this is different, Pinales said.
"This goes beyond, 'Is the workplace safe?'" he said. "This is saying, 'We can dictate everyone to have a vaccine to make life safe everywhere, not just in the workplace.' Because it's everywhere, it's overly broad."
If the court agrees, that alone could sink the current version of OSHA's rule. Although the Biden administration could then seek to narrow the scope of the order so it focuses on protecting people in the workplace, Pinales thinks that would undermine the White House's goal of encouraging more Americans to get vaccinated.
What about companies with 99 employees?
Another aspect of the COVID-19 rule that could make it vulnerable to legal challenge is that it applies only to companies with 100 or more employees, according to legal experts. Under this reasoning, if COVID-19 truly poses a "grave danger" in the workplace, as the order claims, then OSHA also should seek to shield employees at smaller companies.
As a result, the Ohio court could view that employee threshold as arbitrary, as well as wrong in presuming that all larger companies have the resources to administer the rule.
"I think we can all agree that if a company employs 101 versus 98 employees, the same grave danger would apply. It's just selective enforcement, and I am not certain they can overcome the argument that it's not necessarily a grave danger for everybody," employment attorney Elizabeth Faulkner told CBS MoneyWatch. "This goes back to, it's not an emergency if you're making a decision based on who has the manpower to administer it. It certainly dilutes the argument that it's such a grave concern if it's applicable only for companies that can afford to administer it."
Faulkner doubts the COVID-19 order will survive as it is currently written, although if it is rejected the government could take another stab at crafting rules more likely to pass legal muster.
"If I had to take a guess, I would say it's more likely than not that this iteration of the mandate will be revised," she said. "I think employers would be smart of prepare for some iteration of the mandate, but I also think there are a lot of possibilities that can occur."
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