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Biden's vaccine mandate likely to be difficult to enforce while drawing legal challenges

Joe Biden
Posted at 9:57 PM, Sep 09, 2021
and last updated 2021-09-09 23:23:20-04

CLEVELAND — President Joe Biden’s announcement Thursday evening of a new emergency rule requiring the vaccinations or weekly testing of employees at businesses employing 100 or more is the latest escalation by his administration to combat the highly contagious delta variant of the coronavirus. The president’s address, which took direct aim at unvaccinated Americans, would likely have an impact on the lives of up to 100 million people.

In addition to announcing a vaccine mandate for federal employees and federal contractors, Biden’s plan also delves into the affairs of private businesses.

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. This requirement will impact over 80 million workers in private sector businesses with 100+ employees, according to the White House.

Vaccine mandates, which have proven to be controversial in these highly-politicized times, are grounded in legal precedent, namely the U.S. Supreme Court’s decision in Jacobson v Massachusetts in 1905. In that case, a Swedish immigrant refused to comply with a city vaccine mandate during wide outbreaks of smallpox. In the high court’s decision, the jurists sided with public health officials, saying communities have the right to protect themselves in an epidemic of a disease that threatens the safety of its members. The decision changed public health policy forever.

Sharona Hoffman, a professor of law and bioethics at Case Western Reserve University, said the Biden administration’s new rules are a needed step in the fight against the coronavirus. However, it may be difficult to enforce.

“It’s going to be difficult to enforce because we’re now reaching employers all over the country. There is no centralized system right now for employers to report that [they] have 100% of their employees vaccinated,” Hoffman said. “If you don’t have an easy way to report that, how are you going to catch people that are not complying? What are you going to do about it?”

OSHA, which will serve as the enforcement arm under the Biden mandate, is a small federal agency by comparison. Currently, there is one compliance offer for every 70,000 workers.

“They have not had to enforce this kind of a vaccine mandate before and certainly not with this kind of political atmosphere where people are publicly declaring they are not going to comply,” Hoffman said.

The mandate, which has already drawn the consternation of several Republican governors who have vowed to mount a legal challenge, may also place greater strain on an already tight labor market, said Michael Goldberg, an associate professor of design and innovation at Case Western Reserve University’s Weatherhead School of Management.

“It is an incredibly tight labor market. Recently, I was talking to a friend who owns a manufacturing firm where 50% of his staff is vaccinated. He doesn’t have a vaccine mandate because he is worried about people leaving. It is so hard to retain talent,” Goldberg said. “This is going to add additional strain to the system.”

Despite all of the available evidence and scientific data proving the efficacy and safety of the available vaccines — and Pfizer receiving full FDA approval — many Americans have decided to be opposed to the vaccine on the belief that the government shouldn’t interfere with the choices of individuals. Those that are absolutely dead set against the vaccine may decide to vote with their feet and flock to employers that resist Biden’s mandates.

“This variant is really causing stress in the economy and our daily life. The Biden administration, as they make this calculation, is doing it on both the basis of health and welfare of people but also as an economic argument,” Goldberg said. “The Biden Administration, to make this decision, they are both taking into account economic, short term and long term factors, as well as general welfare of people.”