Biden administration braces for a wave of legal challenges to workplace COVID-19 vaccine rule

A healthcare professional holding a syringe with needle and a vaccine vial.
John Fritze
USA TODAY

WASHINGTON – A wave of Republican officials and private companies began suing the Biden administration Friday over a new federal rule that will require large companies to vaccinate their workforce against COVID-19 or implement rigorous testing regimes.

While those lawsuits will likely make for good politics in red states where federal mandates of any stripe are often viewed with skepticism, experts say it's too early to say whether they'll make for good legal challenges. 

Businesses with 100 or more employees will be required to stand up their vaccine-or-testing requirements by Jan. 4 or face stiff penalties under an emergency Occupational Safety and Health Administration rule made public Thursday. President Joe Biden said in September that his administration was working on the rule, so its unveiling earlier this week was not a surprise but did offer new details about its implementation.

The court battles will focus on whether OSHA has the authority under a 1970 law to require companies to ensure workers are vaccinated or tested. Supporters say the move will reach millions of Americans in the workplace, expanding the number of people who are vaccinated against the virus. Critics say COVID-19 isn't a workplace safety issue, and that the administration's use of the OHSA law is an overreach.

Republican officials in Florida, Texas, Kentucky and Missouri, among others, sued over the workplace rule Friday, along with handful of private companies. Federal law allows those suits to be filed directly in federal appeals courts.

"The Biden administration’s new vaccine mandate on private businesses is a breathtaking abuse of federal power," said Texas Attorney General Paxton, a Republican. "Biden’s new mandate is bad policy and bad law, and I’m asking the court to strike it down."  

The fight is almost certainly headed to the Supreme Court on an expedited basis. Several state officials said Friday they intend to seek a court order to temporarily block the rule from remaining in effect. A ruling on that request, assuming it is issued, could be appealed and considered by the Supreme Court in a matter of days.   

Legal experts interviewed by USA TODAY, for the most part, said that the Biden administration appears to be on solid legal footing with the requirement, which appears to fall within the Labor Department's broad authority to regulate workplace safety. But that view was not universally shared and many pointed to ambiguities in the law. 

"I think OSHA has taken some steps to prepare the standard in a way that makes it a little more likely to withstand judicial scrutiny," said Lindsay Wiley, director of the health law and policy program at American University. "On the face of it, I think there's a very strong argument that this falls within OSHA's statutory authority."

Sidney Shapiro, a professor at Wake Forest Law, agreed. 

"It is unusual, but I think it's authorized," Shapiro said. "To my mind the language of the OSHA act is very broad. Congress said, 'you have to adopt the most protective technology that's available to you.'"

But that doesn't make it a slam dunk. Wiley and other experts noted that OSHA has never used its authority quite this way before. Many experts also initially thought the Centers for Disease Control and Prevention had authority to impose an eviction moratorium.

The moratorium, which began under President Donald Trump and was extended by Biden, was blocked by the Supreme Court earlier this year. Over a dissent from three liberal justices, the high court ruled in an unsigned opinion that even though Congress gave the CDC sweeping power to deal with a pandemic it didn't specifically permit the agency to upend millions of landlord-tenant relationships.    

"It would be one thing if Congress had specifically authorized the action that the CDC has taken," the court wrote. "It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts."

The Occupational Safety and Health Act of 1970 allows OSHA to craft an emergency rule, or emergency temporary standard, when a "grave danger" exists that could expose workers to "substances or agents determined to be toxic or physically harmful or from new hazards." Lawsuits are likely to challenge whether COVID-19 is a "grave" workplace danger, experts said, given that it can be just as dangerous outside of work.

Also, some noted, the most serious risks of hospitalization and death associated with COVID-19 can be avoided  if workers get the vaccine on their own – without a government mandate.

The Supreme Court

"If something can be considered a 'grave danger' even though it's easily avoided, then that's a massive expansion" of OSHA's power, said Ilya Somin, a law professor at George Mason University, who added that he supports vaccine mandates in general. "That doesn't mean that a court will necessarily go that way, but it does mean there will be a real case." 

Other challenges will likely focus on whether the virus is the kind of "substance" or "agent" contemplated by a law that appears to be focused more on chemicals. 

Jonathan Adler, a professor at Case Western Reserve School of Law, said the rule may run into trouble if it's viewed as too broad a brushstroke for different types of work.

"It is one thing to impose a vax-or-test requirement in a meat-packing plant or factory floor, where lots of employees congregate," Adler wrote on the Volokh Conspiracy blog. "It is another to impose such a requirement at a home office in which employees are rarely in large meetings or have extended face-to-face interactions."

The emergency rule exempts workers who don’t report to a workplace with other individuals or where the work is conducted outdoors, but Adler said some companies may raise challenges in situations that fall somewhere between an employee who conducts all work from home and those who are required work alongside colleagues.

While many elected Republican officials received considerable attention for the announcements, it's just as likely that a large private company could sue to try to stop the new rule. 

Those challenges will likely work their way up to the Supreme Court at a time when the justices have repeatedly turned away emergency appeals seeking to block the enforcement of vaccine mandates in other contexts. In August, it declined to halt Indiana University's vaccine requirement. In early October, it declined to halt a New York City requirement that public school teachers receive COVID-19 vaccinations.

Most recently, the court late last month declined to block a vaccine mandate for health care workers in Maine over objections that it didn't include a religious exemption

Those cases all involved emergency efforts to temporarily put mandates on hold, not more fundamental questions about the constitutionality of the requirements. They also involved state and local governments, which have far broader power over public safety than the federal government.   

The OSHA rule will likely take an unusual path to the Supreme Court, experts said. To start with, Congress has authorized lawsuits for such rules to be filed directly with appeals courts, bypassing federal district courts. Federal law also sets out a path to consolidate those claims when they are filed in different appeals across the country.

A panel of district court judges will likely choose, by lottery, which appeals court will hear the suits, said Sean Marotta, an appellate attorney at Hogan Lovells. One question is whether an appeals court that might view the rule more skeptically will jump in to temporarily block its enforcement before that lottery process gets underway.

If that happens, such a ruling could be reviewed by the Supreme Court or it could be lifted by another appeals court that is ultimately chosen under the lottery system.

"If you are a particularly motivated circuit court...you might issue an emergency stay because, why not?" Marotta said, particularly if the judges involved "feel strongly about it and want to write an opinion and maybe try to influence the Supreme Court."

Contributing: Maureen Groppe and The Indianapolis Star