Legal Expert: Biden’s Vaccine Mandate Constitutional, Local Businesses Wary | WJHL
JOHNSON CITY, Tennessee (WJHL) – President Joe Biden announced Thursday that companies with more than 100 employees should either implement a vaccination mandate or subject those who are not vaccinated to weekly COVID-19 tests.
Whether this aggressive ruling is constitutional was answered Friday by Lincoln Memorial constitutional law professor Stewart Harris.
“It is clearly constitutional for President Biden to impose a mass mandate on employers, employing more than 100 people,” said Harris.
He cited Commerce Power from section one of the United States Constitution.
“This gives Congress the power to regulate companies that have a significant effect on interstate commerce, which of course any company of this size likely would,” Harris said.
Harris explained that under this commercial power, Congress passed laws creating things like the Occupational Safety and Health Administration (OSHA), which sets rules for all kinds of industries. He mentioned as an example, in particular, OSHA requiring protective masks for coal miners.
“Now, if they can do that, they can certainly demand masks on a temporary basis for other employers facing a critical public health emergency. So it’s clearly constitutional, ”said Harris.
On Friday, the constitutionality of the tenure was not a priority for Crown Laboratories chief executive Jeff Bedard when his team began formulating a plan to undertake such a tenure.
“I have been vaccinated, my three children have been vaccinated,” Bédard said. “It’s not really a political position, it’s just good health, it’s good for the community. But again, the government is not doing the right thing. And it’s not about mandates, it’s about how they mandate.
The Johnson City-based company employs 352 people, said Bedard, a qualifying factor for the tenure.
“There are millions of companies with less than 100 employees. This now puts us in conflict with them to recruit employees, ”said Bédard. “So instead of just going to every company and saying ‘every worker should be empowered’, they’ve now given the worker the option to choose again whether to get the shot or not because he can leave Crown, for example. example, and go to an employer with less than 100 employees. Just like it did with the extra unemployment benefits, the government has now created a reason for us to compete against each other instead of doing it in a logical and perfectly logical way. Go understand that the government is intervening by doing something and not doing it the right way. “
“A test option”
The Biden administration said under the new mandate, eligible employers would not have to force their more than 100 employees to get vaccinated, but could subject them to weekly COVID-19 tests.
This made a frustrated Bédard grow even more.
“It’s a complicated situation,” said Bédard. “And the reality so far is, we haven’t asked whether or not our employees are vaccinated. So I don’t know if of the 352 that we have here in the Tri-Cities region, if 300 are vaccinated or 52 are vaccinated. And that creates a little problem. So the first thing we need to understand is how many are vaccinated or not. “
He said it was very different, for example, if 300 people were to be tested each week compared to a lot less.
“I have to bring someone on the staff to do these tests and how long it would take and the logistical nightmare it would create,” Bedard said. “If it’s 20 employees, I think most companies could handle that. They can then give the employee the choice to be vaccinated or not. Because the costly situation of having to test everyone every week would be less burdensome. “
Regardless of the logistics, Harris explained that the warning about weekly testing would make the warrant less questionable in court.
“Providing a testing option, while I don’t think it’s a constitutional obligation, is of course designed to make it more acceptable to people, to make employers more likely to comply and workers more likely to comply. to conform, and ultimately to make the law itself. appear more reasonable and defensible in court, ”said Harris.
Harris said a precedent has already been set that would protect the mandate in a legal framework.
“We have coal miners in this area, don’t we? If a coal miner would just walk in and say “no, I’m not going to use my safety gear, I refuse to do that and I’m not going to follow the safety rules.” Well that coal miner would be at the door, ”Harris said. “He would lose his job or she would lose her job. Likewise, if a worker comes in and the employer says “I have to make sure you are vaccinated” and the worker says “no and I will not be tested”, well, there is the door. “
Harris explained that companies or workers could challenge the mandate but would certainly suffer the consequences.
“You can file a complaint and try your luck in court. It tends to be quite expensive, but you can do it if you want, ”he added.
He also said that employees are free to resign from positions where they are required to follow the mandate and seek employment elsewhere.
“Of course there are options, so when we’re talking about a vaccine warrant or a mask warrant or any other type of public health warrant, we’re not talking about tying people up on a stretcher and to force a needle into their arms. We’re just saying if you don’t, there will be consequences, ”he explained.
Harris added that mandates of this nature are already being implemented and have been for decades.
“If you want to send your kids to school, you have to show that they have been vaccinated against a wide range of childhood illnesses or that you are not going to school,” Harris said. “So why can’t we do the exact same thing in the midst of a pandemic that is killing people on a daily basis? I mean, I bet a lot of your viewers know people or have loved ones who are currently on respirators at death’s door or have relatives who can’t get into intensive care because all the beds are occupied by of unvaccinated COVID patients. We are in crisis. And when this kind of crisis exists, the power of government increases to deal with that crisis. And so I don’t think there is any doubt as to the constitutionality of these requirements.
Several of the area’s largest employers made statements to the News Channel after Biden’s announcement.
Appalachian Power (AEP) sent the following statement:
We continue to focus on the health and safety of our employees and customers and have aligned our response to COVID-19 with advice from state and federal health officials and our company doctor. . We have strongly encouraged our employees to get vaccinated and have provided incentives to do so, but currently we do not require vaccines. We will assess the rules proposed by the Biden administration to determine their impact on the EAF.
Eastman Chemical Company, one of the region’s largest employers, also made a statement:
We will work to determine the potential impacts of President Biden’s announcement of mandatory vaccination WHERE weekly test of unvaccinated employees of companies with more than 100 employees. There is still a lot to learn about what this means for Eastman and our team members. We understand that OSHA will develop and publish a Temporary Emergency Standard (ETS) and its application over the next few weeks. Until such a rule is developed and published, we cannot comment further on the impact on our team members. Once the ETS is issued, we will gather all the relevant information available and determine what these new rules mean for our business.
The Biden administration announced that large companies would not be the only ones subject to the mandate, but also federal employees and contractors.
In a statement, Nuclear Fuel Services, based in Erwin, Tennessee, said the following:
“As soon as the vaccines became available, we strongly encouraged employees to get vaccinated and we opened an on-site vaccination clinic. We are reviewing the President’s plan, and once we receive further detailed direction from the government, we will fully comply with the guidelines that apply to us as a U.S. government contractor and / or employer of more than 100 people. .
No timeline has been provided for the implementation of the mandate.