Can Biden’s vaccine mandate survive a legal challenge?

Within minutes of President Joe Biden’s vaccine mandate being unveiled last week, multiple critics promised court challenges to stop it.

Biden responded with a pledge to go all the way to the US Supreme Court, if necessary, to defend his plan to require all federal employees, federal contractors, and employers of 100 or more people to either mandate vaccination for COVID or have workers tested once a week and provide proof of a negative result. “We’re playing for real here. This isn’t a game,” Biden said.

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Gov. Mike DeWine immediately rejected the Biden plan, saying the vaccination order is the wrong path for the nation.

“I think the President made a mistake and I say that because I think with the President’s order to compel businesses, compel hospitals to require everybody to be vaccinated, as much as we want people to be vaccinated, I think that is going to be much more political,” DeWine said at an event Friday in Xenia.

Can the order withstand a legal challenge?

Mechelle Zarou is a long-time expert in labor law at the Toledo firm of Shumaker, Loop, and Kendrick. In an interview with WHIO-TV, Zarou said it is a drastic measure that some people see as necessary because of the rising number of COVID cases.

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One of the first questions that has come from her clients is, who pays for the COVID testing? 

“Many employers have used their excess budgets to incentivize employees to get the vaccines. So, now they are going to have to flip from incentivizing to paying for testing,” Zarou said.

Zarou said she is aware of the people who do not want federal or state vaccination mandates and claim that it is their constitutional right to decide on their own whether to be vaccinated or not.

She added though, the federal government has the legal authority to issue health and safety protections for workers.

The vaccination order is expected to come from the US Labor Department’s Occupational Health and Safety Administration.

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That’s the same agency that protects worker safety on the job, from stores and stockrooms to factories and offices.

Zarou thinks the agency would prevail in a legal fight over the mandate.

“I think there’s some room here to do what it ( the Labor Department ) feels necessary and one of the ways they do have wide discretion is in protecting the public health. So, I think it makes an excellent legal question, but I could see this being upheld,” Zarou said.

Another big question coming from employers is “Exactly who does this cover?” Biden said it would involve employers of 100 or more workers, but it was unclear if that meant 100 people at one location, or 100 people across an entire company.

Zarou expects details on that to be released soon. If there is a legal challenge, she said enforcement may be delayed until the case is resolved and that may not happen until next year.