Republican Governors Brian Kemp from Georgia and Kristi Noem from South Dakota said they plan to challenge the mandate. Florida Governor Ron DeSantis said he was against “mandates of any kind”.
All of this underscores how difficult it will be for the administration to quickly implement a comprehensive policy affecting some 80 million private sector workers.
“I think that defines ‘ideas are easy, implementation is difficult’ new,” said Michael Lotito, attorney who represents companies at the law firm Littler Mendelson.
“What we have now is chaos,” added Lotito, “because of the unintended consequences of such an announcement where there is no clarity on a huge number of unanswered questions.”
The new emergency rules were announced Thursday as part of a new six-part effort by Biden to increase the vaccination rate in the US to quell criticism of the government’s treatment of an increase in coronavirus cases related to the Delta variant. According to the Centers for Disease Control and Prevention, only about 53 percent of the population is currently fully vaccinated.
The rules, which will be concretized by administrative officials, will be the first Covid-19-specific security mandates from the federal government that affect the daily workplace. So far, most employers outside of the healthcare sector are subject to optional safety guidelines.
The temporary emergency standard requires that companies with more than 100 employees check whether their employees are vaccinated or have themselves tested for Covid-19 on a weekly basis. Employers who break the rules could face fines of $ 14,000 per violation, according to the White House.
But there are many questions about the scope of the rule. For example, does the 100-employee limit apply to one job or an entire company? Does the company have to pay for the exam or does the employee?
Implementing a rapid test program as envisaged in Biden’s plan is logistically difficult and costly, said Ian Schaefer, chairman of the Loeb and Loeb Labor and Labor Practice in New York.
“It’s millions of dollars a year for businesses of all sizes. I’ve seen companies do this before Biden got his job, and it’s incredibly tedious and time-consuming and can’t even guarantee health and safety the way vaccines would prescribe, “Schaefer said.
“It’s incredibly difficult to manage, and it’s not perfect to make sure the tests are done on time that people testing are actually not having COVID,” he added.
It is also unclear how quickly the rule will come into force – Standards issued by federal agencies typically take several weeks to write and go through the executive branch.
However, the Department of Labor has been working on the standard for at least a week, according to two people familiar with the matter.
The rules are being enforced by the federal agency for occupational health and safety and are expected to be released in the coming weeks, an administrative official said on Thursday. However, it took the agency several months to issue a temporary standard for a Covid-19 healthcare emergency earlier this year and spent weeks meeting with stakeholders about the rule.
Groups of companies are expected to object to some aspects of the emergency vaccine regime.
Unions have also warned that binding workplace vaccination policies need to be negotiated between workers and their employers, increasing the potential for friction and delays in individual workplaces.
“Everyone should be vaccinated – as a step to stop the pandemic,” said AFL-CIO President Liz Shuler in response to Biden’s Covid-19 plan. “Workers and unions should have a voice in shaping this policy.”
The mandate also stands before the court of public opinion. A recent Washington Post-ABC News poll found that fewer than half of Americans support vaccination regulations in the workplace.
Despite the uncertainties, a legal dispute does not seem to arise from major economic players such as the Chamber of Commerce or the National Retail Federation.
“We appreciate the government’s commitment to maintaining job security despite the ongoing challenges of the pandemic,” said Edwin Egee, vice president of government relations and human resource development at the NRF, on the announcement. “We look forward to working with the Department of Labor when it announces this rule.”
The Chamber of Commerce said in a statement that it will “carefully examine the details of the implementing regulations and related regulations” and work to ensure employers have “resources, guidance and flexibility” to meet the requirements.
The Employment Equal Opportunities Commission has already made it clear that employers can require their employees to be vaccinated as long as they provide accommodation for workers who state that they cannot be vaccinated because of their religious beliefs or disability. Corporations can order workers to stay at home if they cannot be vaccinated for any of these reasons, and workers could be fired if their employer is unable to work remotely, lawyers say.
But proving that providing shelter would be an “undue hardship” can be difficult, and lawyers say they are skeptical that reasoning that the cost of providing tests is too expensive would hit that threshold .