Richmond employment attorney discusses Biden's vaccine mandate

Posted at 11:56 AM, Sep 14, 2021

RICHMOND, Va. -- Since late last week, Karen Michael says local businesses she consults have been reaching out with concerns surrounding President Biden’s order that companies with more than 100 employees will require a COVID-19 vaccine as part of employment.

The order undoubtedly faces legal challenges, but the final language of it is yet to be published.

“I’ve been inundated with employers concerned about President Biden’s announcement,” said Michael, who is a Richmond-based employment law attorney and author.

The executive order directs OSHA to draft an emergency requiring all employers with at least 100 employees to make sure their workforce is fully vaccinated or require unvaccinated workers to get a negative test at least once a week, CBS News reports. OSHA will issue an Emergency Temporary Standard to introduce the vaccine requirement.

Michael said since the rule has not been released, she is advising employers who still have not required the vaccine to proceed with caution.

“Literally, what we have right now is a paragraph talking point and a six-point plan. So, it is very uncertain what will be in it,” she said. “There are going to be a lot more questions than answers, at least right now. Employers today need to do only what’s necessary for their own organization.”

Court challenges to the order have already been promised and Michael said OHSA rules have been struck down in the past.

“Only one has been upheld as legal, back in 1978. So, there is a big question, I think, about whether these standards are going to be upheld as legal. There will likely be an injunction. Other legal scholars say it will pass muster, four states have had emergency temporary standards upheld, including Virginia,” Michael said, citing permeant workplace regulations.

However, the federal mandate order is a separate issue from whether an employer can require the vaccine as a term of employment on their own. Michael and other legal scholars said courts upheld the rights of businesses to do so.

“No court has held that the vaccine mandates are illegal, so that tells you vaccine mandates are legal,” Michael said. “Now, if you want to make a decision today, why don’t we just go ahead and vaccinate our employees, that’s your decision, and understand the risks and benefits associated with that.”

A small Upstate New York hospital has made headlines after announcing they would halt delivering babies after some member of their labor and delivery team quit over a vaccine mandate. Michael said workers have little recourse outside of quitting, so during a time when some companies face staffing shortages, these one-off situations could continue happening.

"The real impact is potentially worker shortages, where people are deciding to just quit because they’re refusing the vaccine,” she said.

OSHA has not announced a timeline for when the vaccine rules will be published.