‘How do you enforce this?’ Biden’s vaccine mandate to face legal challenges

Coronavirus

CLEVELAND (WJW)– Questions of legality and enforcement surround President Joe Biden’s announcement of a sweeping new COVID-19 vaccination and testing mandate.

The President is basing the unprecedented mandate on workplace safety. The U.S. Department of Labor said OSHA is developing an emergency rule mandating that employers with at least 100 workers require employees to be vaccinated or test for the virus weekly.

Violators will face a $14,000 fine per violation.

“We’re going to reduce the spread of COVID-19 by increasing the share of the work force that is vaccinated in businesses all across America,” Biden said while announcing the plan Thursday.

Legal challenges are imminent, with some states already threatening lawsuits.

However, Case Western Reserve University professor of law and bioethics Sharona Hoffman said there is legal precedent for vaccine mandates. In 1905, the U.S. Supreme Court said in Jacobson v. Massachusetts that a Massachusetts city could issue fines for refusing a smallpox vaccination.

“I think their authority to do it will be challenged, and then there are enforcement questions,” Hoffman said.

OSHA is a small agency now facing a big task – without the infrastructure or reporting systems in place to regulate vaccination. It has fewer than 2,000 inspectors responsible for the health and safety of 130 million workers, or about one compliance officer per 70,000 workers.

“They don’t really have a way to make sure every employer really makes sure every employee is vaccinated. So how do you enforce this? That is going to be a big challenge,” Hoffman said.

The agency typically issues and enforces rules for things like workplace machinery and safety protocols.

“It’s unprecedented, and there aren’t already established direct reporting mechanisms to keep track of who’s getting a vaccine and who isn’t at the federal level,” Hoffman said.

Despite the challenges and opponents, Hoffman said some businesses may embrace the mandate.

“One argument is they’ve been waiting for something like this. They would love to do it, but they were afraid before, and this gives them cover, ‘well, we’re doing that because the law requires it,’” she said.

Several large Cleveland-area employers said Friday they are still reviewing the details of the President’s plans and its implications for their businesses and employees.

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