Lawmakers question the legality of Biden’s vaccine or test mandate, but can OSHA implement it?

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(WETM/AP) – The new federal vaccine requirement announced by President Joe Biden has created another worry for large businesses: With help wanted signs up almost everywhere, some could lose valuable employees or won’t be able to find new ones.

Biden announced sweeping new orders Thursday that will require employers with more than 100 workers to mandate vaccinations against COVID-19 or offer weekly testing. The new rules could affect as many as 100 million Americans, although it’s not clear how many of those people are currently unvaccinated.

The announcement by President Biden has caused a significant response from Republicans. They are feeling frustrated and ambushed. Now, lawmakers are questioning the White House.

“Yesterday, when he said that he’s frustrated with 80 million Americans. I don’t know how anybody could be frustrated with 80 million Americans,” Rep. Keller told 18 News.

While the state government has the right to adopt laws, in terms of workplace rules and regulations, the Federal government has the authority to implement new mandates. Lawyers and OSHA will have to prove the COVID-19 virus poses a grave danger to workers and the mandate is a solution to the threat.

“The Federal government has the right to implement workplace standards and tell states or employers that they have, they have to follow this,” Rick Ostrove, partner at Leeds Brown Law, PC, added.

This announcement will be challenged in court, as Republicans have indicated, but it could stand because it offers an alternative to vaccination. Ostrove says this test-out option could be key to implementing the rule.

“The alternative of testing is definitely going to protect any such regulation. If you do have a disability that precludes you from taking the vaccine, how is it possible that that disability precludes you from testing? I have not heard religious objections to test,” Ostrove continued.

Rep. Keller believes it should be up to the individual businesses because they know their workforce and customer basis.

“That’s up to the up to the business, but what should not happen is people should not be bullied,” Rep. Keller concluded.

Corning Inc. responded to 18 News’ request for comment saying:

“In response to the recent national increase in COVID-19 cases due to the growing presence of the Delta variant, Corning has reinstated its Responsible Corning protocols, including mandatory weekly testing, face coverings, and social distancing within all Corning Valley facilities. Corning continues to monitor COVID infection rates and will update pandemic response policies as needed and follow all local, state, and national regulations. Given the overwhelming benefits as well as the recent announcement of full FDA approval for the Pfizer vaccine, Corning continues to strongly encourage all employees to get the COVID-19 vaccine to protect themselves, their families, and their colleagues.”

Even those who favor Biden’s decision as a way to stop the coronavirus from spreading further are afraid that vaccination-averse workers will leave, or job seekers won’t apply for their openings. Some workers may also switch to smaller companies where shots in the arm aren’t required.

“In a tight marketplace, it’s very difficult to find employees, much less to keep our current employees,” said Jonathan Chariff, CEO of South Motors, a group of 12 auto dealerships in the Miami-Ft. Lauderdale area with more than 1,100 workers. “It’s easy for them to go and find another job elsewhere.”

To be sure, the mandate could make some employees more comfortable working with others in tight spaces. Indeed, Chariff said his company supports Biden’s move. And although he, too, wants to make sure all workers are vaccinated to keep them safe, he decided against requiring it because of the labor shortage. Right now he has 80 to 100 openings.

Karl Wadensten, CEO of Richmond, Rhode Island-based VIBCO Vibrators, was an early adopter of masks, weekly virus testing, and temperature checks at his manufacturing business and has encouraged vaccinations, but fears he’d lose employees if he forced them to get the jab.

Wadensten, whose company makes industrial vibrators used in dump trucks and other applications, said Friday he is waiting for more clarity about what the Biden orders will mean for his business, which has a small number of government contracts. His workforce has been hovering just above and below 100 employees, of whom about 85% are vaccinated.

“For that other 15%, it would be detrimental to their beliefs and values that they have,” he said.

Conversely, smaller companies see being exempt as an advantage. Like other businesses, Alan Dietrich, CEO of Crater Lake Spirits in Bend, Oregon, is facing staff shortages. He has 36 workers, with an immediate need for two or three more.

“Being left out of the mandate is helpful for hiring,” he said. “We are still finding that a small but meaningful number of people in our area are vaccine-hesitant, and staffing is so tough that even one person is significant to us.”

On the other hand, he said, the business is more susceptible to slowdowns or shutdowns due to positive tests. But a statewide mask mandate in Oregon “definitely helps keep our staff safer,” he said.

Per Biden’s order, the millions who work as employees of the executive branch and contractors who do business with the federal government won’t have the option to get tested instead of taking the vaccine. The order also requires large companies to provide paid time off for vaccination.

The Associated Press reached out to a wide range of companies since Thursday’s announcement. Many, like General Motors and Ford, said they favor vaccines but were analyzing the executive order. Others noted that they already require vaccinations.

Walmart, the nation’s largest private employer, was one of the first major companies to mandate vaccines for some of its workers. Workers at its headquarters in Bentonville, Arkansas, as well as its managers who travel within the U.S. must be vaccinated against COVID-19 by Oct. 4.

But the vaccine mandate excluded front-line workers such as cashiers, who according to the company have a lower vaccination rate than management.

The tech industry has largely been at the forefront of vaccine requirements, making the sector, in general, a likely supporter of Biden’s policy on the issue. In late July, Google became one of the first major U.S. employers to decide all its workers needed to be vaccinated before returning to the office. Facebook quickly adopted a similar policy a few hours after Google took its hard stand on vaccines.

Half of American workers favor vaccine requirements at their workplaces, according to a poll from The Associated Press-NORC Center for Public Affairs Research. Such mandates have already been gaining traction following the Food and Drug Administration’s full approval of Pfizer’s COVID-19 vaccine. Vaccines from Moderna and Johnson & Johnson are available under emergency authorization but haven’t been formally approved.

About 59% of remote workers said they favor vaccine requirements in their own workplaces, compared with 47% of those who are currently working in person. About one-quarter of workers — in person and remote — said they are opposed.

More than 177 million Americans are fully vaccinated against the coronavirus, but confirmed cases of the virus have shot up in recent weeks. They’ve now reached an average of about 140,000 cases per day. On average, about 1,000 Americans dying from the virus daily, according to data from the Centers for Disease Control and Prevention.

“The business community is really going to appreciate this,” said Angela B. Cornell, a clinical professor at Cornell Law School, who focuses on labor law. “This shift will make it a lot easier for employers to push those individuals who have been on the fence or who have been opposed.”

Companies won’t have to worry about being sued, since it’s a government mandate and not one from the employer, she said.

Those who don’t work for federal contractors and are afraid of the vaccine can choose weekly testing instead, but many people who are simply hesitant are more likely to get immunized, said Dorit Reiss, a professor at the University of California Hastings College of the Law who has studied vaccine mandates for nearly a decade.

“The testing is sufficiently burdensome that most of them would prefer just to be vaccinated,” she said.

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