Legal questions over President Biden’s vaccine mandate

Published: Sep. 15, 2021 at 5:26 PM CDT
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BIRMINGHAM, Ala. (WBRC) - President Joe Biden’s mandate that businesses with a hundred or more employees must require the COVID vaccination is not yet in effect, but once OSHA issues the new emergency rules, many expect the mandate will face legal challenges.

In Alabama, Governor Kay Ivey and State Attorney General Steve Marshall both oppose the mandate. Marshall is vowing to file a lawsuit if it’s pushed forward.

The Labor Department’s Occupational Safety and Health Administration is in charge of making the workplace safe for employees. The Biden administration said protecting employees from a contagious virus does just that.

A former federal judge said Wednesday there are a lot of unknowns about the legality of the mandate. “It is an unique approach using the health and safety of the workers to require vaccines,” John Carroll said.

Carroll, a former federal judge and now a law professor at Cumberland Law School, said it’s never been done before, but that doesn’t mean it can’t be done now. It’s estimated that mandate will cover 80 million workers. OSHA will issue an Emergency Temporary Standard to enforce the mandate. Carroll said questions have to be answered.

“Congress, when it passed OSHA, which is the health and safety in the workplace act, did it intend to cover diseases?” Carroll said.

If employers or employees object to mandated vaccinations, they can implement weekly testing, but then the question of cost of testing and time off to get tested comes up. The mandate is expected to head to court to learn its legality.

“If we’re still in the middle of a pandemic that is killing hundreds of thousands of people, I think the government has a strong health and safety argument,” Carroll said.

Carroll said if the pandemic has waned, the mandate could be in trouble. Carroll said employers can mandate vaccinations for their workers. President Biden can mandate vaccinations for government workers as their employer. The legal question is whether the government can mandate private companies to force their employees to get the vaccine.

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