The Q&A law | Mandatory Workplace Vaccinations That Are Worth It | Columns
As for private employers, President Biden recently announced that those employers with more than 100 employees will be mandated to require their employees to be vaccinated against COVID-19.
With the proverbial chorus of GOP governors pledging to legally challenge such a rule, where does the president ostensibly get such legal authority to proclaim such a mandate?
Why, of Congress, under the Occupational Safety and Health Act passed in 1970. Under this act, the Occupation Safety and Health Administration (OSHA) is a regulatory body of the US Department of Labor that has the power to regulate and inspect workplaces in the 1950s. States and Federal Territories.
With the exception of employees of the United States or state governments, almost all private employers whose activities affect commerce are subject to the law.
OSHA’s mission is to make workplaces as safe as possible. It is with this authorization from Congress that the Department of Labor can enact safety regulations requiring conduct of employers to promote safety by requiring safe conduct of their employees – in this case, to be vaccinated.
The OSHA rule making process normally requires a deliberative reporting and hearing process.
However, this vaccination mandate is intended as an emergency order that OSHA has relied on in the past under the “general duty” doctrine of the OHS Act of employers to protect their employees.
There is something called a Temporary Emergency Standard (ETS) whereby the Department of Labor can issue a regulation without the rulemaking process that could otherwise take months or years.
Such an ATF was used in 1983 to begin to protect workers from exposure to asbestos in building materials.
The argument here for an emergency rule requiring vaccinations is that COVID-19 is an easily transmitted infectious disease that can be fatal.
Although OSHA has a long history of chemical exposure regulations, there is very little history in dealing with infectious diseases in the workplace. In fact, the Ministry of Labor never put in place a rule requiring vaccinations.
The office of the secretary of work has announced that it will receive the official order for ETS vaccination in a few weeks. Details should be clarified on exactly how the mandate will be implemented and whether medical or religious exceptions to vaccination will be allowed.
A federal judge has temporarily suspended New York state from enforcing its vaccination mandate for healthcare workers if workers demanded a religious exemption – something the state would not allow.
However, in Iowa, a federal court temporarily suspended a state law prohibiting school boards from ordering the use of face masks.
These will be among the problems that the courts will face in the legal challenges that will surely be brought by states, businesses and employees.
The personal freedom mantra has been used to oppose rules requiring the wearing of masks or vaccination.
However, the rights to individual liberty have never been inviolable under the law. Where there is a compelling government interest in protecting the health and welfare of the public, personal freedom may be relegated to a lower level. Therefore, schools may require children to be vaccinated against polio, mumps, measles, chickenpox, etc.
By opposing masks and vaccinations, the question becomes: do we have absolute freedom to spread a fatal disease to other people? The SARS virus would like an affirmative answer.
Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.