Colin Kalmbacher at Law & Crime:
The Department of Labor is developing an emergency rule to require that all employers with 100 or more employees ensure their workforces are fully vaccinated or show a negative test at least once a week. pic.twitter.com/Yn2kDf63FU— Joe Biden (@JoeBiden) September 10, 2021
The administration’s latest exercise of highly-publicized state power in response to the renewed COVID-19 pandemic was predictably met with grumbling from discontented online posters and commentators, primarily on the political right. Quickly after Biden’s plans were made public, the hashtag #DoNotComply spread on Twitter.
Legal experts, however, quickly noted that the vaccine mandates were likely to pass constitutional muster.
“Yes, this is constitutional,” famed constitutional law professor and Dean of Berkeley Law School Erwin Chemerinsky, told Law&Crime.
“There is no constitutional problem with requiring people be vaccinated,” the author of the premier constitutional case law textbook used in U.S. law schools added. “The government could require everyone to be vaccinated against COVID.”
“This was resolved by the Supreme Court in 1905,” Chemerinsky said, referring to Jacobson v. Massachusetts.The first proposal will have the U.S. Department of Labor, under the auspices of the Occupational Safety and Health Administration, issue new rules that mandate any business with 100 or more employees enforce vaccine compliance among their workforce or maintain a regime where employees submit to weekly COVID-19 testing.
The new rules will further mandate that such large businesses must provide paid time off for their employees to receive the free vaccinations–and for any necessary post-vaccine recuperation.
“To continue efforts to ensure that no worker loses a dollar of pay because they get vaccinated, OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination,” the White House explained in a press release announcing the new directives.
“The issue is whether the government has the authority under some statute to order employers to require vaccination or weekly testing,” OSHA expert and Wake Forest University Law Professor Sid Shapiro told Law&Crime. “If such authority exists, it would be constitutional because Congress can regulate interstate commerce.”New York City-based attorney and writer Luppe B. Luppen said the relevant statute was contained in OSHA’s authorizing legislation, the Occupational Health and Safety Act of 1970, which was signed into law by then-president Richard Nixon.
In response to conservative writer Andrew Egger calling Biden’s new proposals “nuts,” Luppen retorted that the move was “a plain Jane congressionally authorized OSHA regulatory proceeding under Section 6(c) of the Occupational Safety and Health Act.”
“OSHA’s been around for 50 years,” federal employment attorney Bradley P. Moss added via Twitter.