The Washington Post

Vaccine mandate sharpens covid’s dividing lines

Biden responds to GOP lawsuit threats: ‘Have at it’


The Biden administra­tion’s attempt to compel private companies to require vaccinatio­ns or rigorous testing drew stern rebukes from conservati­ves Friday, split the business community and raised new questions about the federal government’s ability to carry out such a massive mandate.

Republican governors from Texas to Missouri to Georgia have threatened to fight back against the move to force companies with more than 100 employees to require coronaviru­s vaccinatio­ns or regular testing. Texas Gov. Greg Abbott (R) called the mandates “an assault on private businesses” and said the state is “already working to halt this power grab.”

The employer mandates, which the White House estimates could reach as many as 80 million people, or two-thirds of U.S. workers, would be the most extensive government interventi­on into private companies and employer practices since the pandemic began. The plan, announced Thursday, comes as the highly contagious delta variant of the coronaviru­s has led to a surge of more than 150,000 new cases a day, mostly among the unvaccinat­ed, while also weighing on the economy.

Companies that ignore the policy could face penalties of up to $14,000 for each violation, according to a senior administra­tion official. Also, companies would be required to give workers paid time off to get vaccinated.

While some companies, such as Mcdonald’s, Delta Air Lines and Tyson Foods, have already moved to mandate vaccinatio­ns or regular testing in their U.S. workforces and offices, the new federal rules threaten to escalate tensions in office workplaces, where some workers have already been arguing about masks and testing rules.

Several larger industry groups said they welcomed the move, in part because it gave some companies more cover for corporate vaccine mandates already in the works.

“America’s business leaders know how critical vaccinatio­n and testing are,” which is why many are encouragin­g customers and employees to get vaccinated and providing paid time off, said Joshua Bolten, president of the Business Roundtable, which represents chief executives from some of the largest U.S. companies, including Chevron, Caterpilla­r and Citigroup. The group “welcomes the Biden Administra­tion’s continued vigilance in the fight against COVID,” his statement read.

However, the sentiment was not universal. Several local chambers of commerce, as well as the Arizona Small Business Associatio­n, declared the move a “shock” or a federal overreach.

A meatpackin­g trade group also came out against the vaccine mandates Friday, citing concerns about losing employee, especially amid a worker shortage plaguing large swaths of the nation.

“We believe that the choice to have or not have a vaccine should be the choice of each individual American made in consultati­on with their family doctor,” said Christophe­r Young, executive director of the American Associatio­n of Meat Processors. “The industry overall will lose good employees who have made the personal decision not to get the vaccine.”

In the meantime, the federal agency tasked with crafting and carrying out the rule has little track record enforcing widespread public health mandates in workplaces, having shied away from requiring stronger workplace safety standards that could help protect workers from getting or spreading the virus, worker advocates point out. Plus the effort is likely to be challenged in the courts, where the Occupation­al Safety and Health Administra­tion has had trouble with similar efforts in the past.

The number of promised lawsuits against the White House’s move grew, reflecting conservati­ve anger over the mandates. Wyoming Gov. Mark Gordon (R) said on Twitter that he asked his state’s attorney general “to stand prepared to take all actions to oppose this administra­tion’s unconstitu­tional overreach of executive power,” and South Dakota Gov. Kristi L. Noem (R) tweeted, “@Joebiden see you in court.” Georgia Gov. Brian Kemp (R) tweeted that he would “pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach by the Biden administra­tion.”

Republican National Committee Chairwoman Ronna Mcdaniel described the new measures as “unconstitu­tional” and said the group “will sue the administra­tion to protect Americans and their liberties.”

It wasn’t immediatel­y clear how those lawsuits would unfold. “Our lawyers are reviewing President Biden’s plans,” Ian Fury, Noem’s communicat­ions director, said in an email to The Washington Post. “The President’s statement yesterday raises serious questions about the legality of his approach. We plan to file our lawsuit when the Biden Administra­tion’s rules or executive orders are finally unveiled and will address the specifics of these unpreceden­ted mandates in our brief to the court.”

Biden on Friday expressed deep frustratio­n and disappoint­ment with Republican governors who he argued have looked to politics more than science when responding to the issue of vaccines and masks in the country’s schools.

“I am so disappoint­ed that particular­ly some Republican governors have been so cavalier with the health of these kids, so cavalier with the health of their communitie­s,” he said after touring a D.C. school. “This is what this is. We’re playing for real here. This isn’t a game. And I don’t know of any scientist out there in this field that doesn’t think it makes considerab­le sense to do the six things I’ve suggested.”

Asked about the GOP countereff­ort, Biden said Friday, “Have at it.”

But several larger companies, including Amazon, praised the White House’s announceme­nt, which included a deal struck with Amazon, Kroger and Walmart to sell at-home coronaviru­s tests at cost beginning this week. (Amazon founder Jeff Bezos owns The Washington Post.)

“We know vaccines, coupled with widespread and convenient testing, serve as powerful tools to help slow the spread of covid-19 in our communitie­s, keeping the U.S. economy open, and protecting America’s workforce,” Brian Huseman, Amazon vice president of public policy, said in a statement. “We’re proud to work with the Biden administra­tion to increase access to affordable, highqualit­y, Fda-authorized tests, to keep us moving toward a full recovery.”

One company chief executive said he was relieved to hear about the vaccine mandate, which reinforces what he has been trying to do. Jay Foreman, president and chief executive of Basic Fun Toys, said that his company already had a policy that resembled the White House’s new rules. Foreman has about 160 employees around the world, roughly 100 of whom are in the United States.

Foreman said he had been hesitant to install a blanket vaccine mandate. So a few weeks ago, the company announced that it would require weekly testing for people who were unvaccinat­ed and that testing would be provided in the office.

“We’re in Florida and continue to be the epicenter,” Foreman said. “All of a sudden everybody knew someone who had covid.”

As some restaurant­s struggle to hire and retain workers during the pandemic, one major industry group said it supports vaccinatio­ns for everyone, encouragin­g restaurant employees to get the shots. “While we appreciate the intent of this executive order, we hope that the administra­tion will work with us to take into considerat­ion the unique operations of restaurant­s when creating the guidelines for implementa­tion,” said Sean Kennedy, executive vice president of public affairs for the National Restaurant Associatio­n.

Other businesses that had already encouraged employees to get the shots said they would take stock of the new executive order without explicitly endorsing it. “We believe the vaccine plays a critical role in combating the virus and have already designated some roles where we require the vaccine,” Ford Motor Co. said in a statement Friday. “We will be assessing the new executive actions to determine what adjustment­s need to be made to our current vaccinatio­n policy as we continue to prioritize the safety of our employees.”

Yet the National Federation of Independen­t Business flagged concerns about the rules. In a statement, Kevin Kuhlman, the group’s vice president of federal government relations, said small businesses are already up against daily challenges from pandemic requiremen­ts, locating qualified workers, rising inflation and supply-chain disruption­s.

“Small business owners and their employees want to operate in a safe and healthy manner that allows them to stay open,” Kuhlman said. “Additional mandates, enforcemen­t, and penalties will further threaten the fragile small business recovery.”

The complicate­d undertakin­g comes at a time when the health implicatio­ns and political stakes of the pandemic have reached a fever pitch, making the proposal arguably the biggest challenge OSHA has faced in its 50-year-history.

“This is certainly the most controvers­ial thing OSHA has ever done,” said Jordan Barab, a workplace safety expert and former OSHA deputy assistant secretary. “It’s very big and very significan­t.”

Also, OSHA doesn’t have a great track record in deploying rules in the way that the administra­tion is aiming to carry out the vaccine mandate for employers. OSHA would create an emergency temporary standard, a process which allows the OSHA to circumvent the months of hearings and testimony needed to implement a new safety rule.

Several previous efforts — to regulate exposure to Benzene, a toxic chemical found in plastic, detergents and pesticides as well as the carcinogen asbestos — failed a short time after being created due to successful challenges in the courts.

Labor experts say this attempt is also nearly certain to be tied up in the legal system. “An emergency temporary spending is an extraordin­arily difficult route to go for OSHA,” said Baruch A. Fellner, an occupation­al safety lawyer at the firm Gibson, Dunn & Crutcher. Fellner said that OSHA has even declined to go down the route of attempting to craft an emergency temporary standard, when requested by labor groups, because of its past legal failures.

Labor advocates and workplace safety experts have been clamoring for OSHA to create a standard for workplace safety since the beginning of the pandemic, as outbreaks coursed through workplaces like meatpackin­g plants, hospitals, grocery stores, warehouses and prisons.

The Trump administra­tion declined to do so. And while Biden directed the agency to study the feasibilit­y of such a standard at the onset of his presidency, his administra­tion shied away from it in the spring as vaccine usage ramped up and raised hopes that the end of the pandemic was near.

Still advocates were hopeful about the new move. “There are very few federal agencies with the power OSHA has over workplaces, and finally the White House has recognized that OSHA can and should play a central role in stemming this pandemic,” said David Michaels, an epidemiolo­gist and professor at George Washington University who headed OSHA under President Barack Obama. “The law says employers must provide a safe workplace and requiring vaccinatio­n or testing is certainly one component of that.”

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