In our editorial, we addressed the legal issues raised by President Biden’s sweeping mandate that all private businesses with 100 or more employees require workers either get vaccinated, or produce a weekly negative test. Andrew McCarthy separately argued that the order is fundamentally unconstitutional. Beyond the serious legal and process issues raised by using a rarely invoked OSHA emergency authority to deputize private businesses to prod 80 million Americans into getting vaccinated, there are serious practical questions. And one of the problems with bypassing the typical regulatory process is that those tasked with implementing these requirements will have no opportunity to weigh in on the potential complications.
Just to think of a few complications, under this order, businesses will now have to set up a system for monitoring who has been vaccinated and who has not. They will also have to facilitate weekly testing for those who choose not to be vaccinated, and keep track of the negative tests. Who pays for the tests? What happens in the time that workers are waiting test results? This remains unclear as of now.
Also, what are businesses supposed to do with employees who refuse to get vaccinated and won’t submit to weekly testing? Can they fire those workers? Are they forced to fire those workers?
To take things a step further, how does OSHA intend to enforce this law? Will businesses be forced to submit weekly reports showing that all their workers are vaccinated or have tested negative? Will OSHA officials do spot checks at offices to make sure that businesses can produce records demonstrating that they are in compliance?
And what happens if the federal government comes around to the view that booster shots are required, either in response to new variants or because of waning immunity over time? Will somebody who was considered fully vaccinated at one point still be considered fully vaccinated?
All of these questions, and likely many more, would come up in a normal regulatory review process. Instead, they will have to be worked out chaotically in real time. If the courts allow this order to go into effect, that is.