Industry Groups Mount Opposition to Federal Private Employer Vaccine Mandate on Dubious Grounds

On November 4, 2021, the U.S. Occupational Health & Safety Administration (“OSHA”) issued an interim rule mandating that employers with at least 100 employees require that their staff either be vaccinated against COVID-19 or submit to weekly testing.  The long-anticipated rule follows calls from President Joe Biden for OSHA to issue such a mandate.  Over the last several weeks, the President has expressed hope that it would obtain at least some buy-in from industry groups.  Indeed, it was this concern that motivated the Biden Administration to limit the rule to large employers and allow for weekly testing as an alternative to vaccination.  Predicting significant backlash to the mandate, the White House apparently hoped concessions like these would lessen vitriol from industry groups and employees opposed to a federal mandate.  Without question, the Biden Administration was correct in predicting the backlash; however, within hours of the new rule’s publication, it is already becoming clear that the government’s concessions will do little to reduce opposition.

With several constitutional challenges by private interests and state governments to similar vaccine mandates already underway—most, if not all, seemingly destined to fail—several industry groups are already contemplating legal challenges to the new OSHA rule.  Apparently, they hope to stay implementation of the rule before the compliance schedule begins on December 5, 2021 and ramps up further on January 4, 2022.  In fact, within mere hours of the new rule’s publication, some business groups moved forward with filings in the Sixth and Eighth Circuit Courts of Appeal, contesting OSHA’s authority and rationale for issuing the vaccine mandate under an Emergency Temporary Standard (“ETS”).

An ETS may be employed where the U.S. Department of Labor (of which OSHA is a part) determines that (1) “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) “such emergency standard is necessary to protect employees from such danger.”  While the viability of these lawsuits is still up in the air, it is difficult to fathom how a global pandemic would not authorize use of an ETS based on the foregoing standard.  Understandably, the Biden Administration has expressed confidence that the government will defeat any and all challenges to OSHA’s new rule.