Biden’s authority to prescribe vaccines stems from the 1971 law protecting workers from “grave hazards.”

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WASHINGTON – President Joe Biden’s sweeping assertion of the President’s authority to require vaccines for 80 million American workers is based on the first application of a 51-year-old law that gives the federal government the authority to protect workers from “serious danger” on Workplace.

White House officials believe the emergency agency provided by Congress under the Occupational Safety and Health Act of 1970 is a legitimate and legal means of combating the coronavirus pandemic. However, they acknowledge that the law’s emergency provisions, which have been used for decades to protect workers from asbestos and other industrial hazards, have never been used to require a vaccine.

The novelty of the effort is at the center of legal threats from Republican lawmakers, governors, experts and others, many of whom vowed Thursday to challenge the president’s application of workplace rules. Senator Ted Cruz, R-Texas, described Biden’s actions as “completely lawless.” Georgia Republican Governor Brian Kemp said the move was “blatantly illegal and Georgia will not stand for it.”

In a fundraising email sent Friday, Florida Governor Ron DeSantis, a Republican who issued anti-masking orders, wrote: “Joe Biden is at war on constitutional government, the rule of law, and the jobs and livelihoods of millions of Americans explained .”

But the presidential top advisors don’t seem to be bothered by the expected response from these sides. At a Washington middle school, Biden responded Friday morning to threats of lawsuits from his opponents.

“Do it,” he said.

And experts said the administration appeared to have a solid legal foundation as it relied on the existing powers given to the OSH administration by the legislature and backed by decades of court rulings.

“OSHA law gives employees the right to a safe and healthy workplace,” said Robert I. Field, law professor at Drexel University in Philadelphia. “A vaccinated workforce is an essential part of a safe and healthy workplace. It is neither safe nor healthy to be exposed to a potentially fatal virus. So OSHA would have that authority. “

Biden’s call to use this authority was a sharp change in tone and approach. Aside from the caution that marked his government’s previous stance on vaccine mandates, the president said he will use OSHA rules to provide vaccines for up to 80 million workers in private companies across the country, as well as health workers, teachers and federal agencies to require employees, government contractors, and more. Those who still refused would have to have at least weekly tests to prove they weren’t infected.

More about the COVID-19 pandemic

For months the president tried gentle persuasion. Anything else, the White House worried, would backfire in a polarized country where tens of millions of people viewed the COVID-19 vaccine as a political Rorschach test.

However, after declaring that he is no longer patient with the unvaccinated, Biden is now testing the limits of government authority to enforce personal health decisions in the interests of fighting a pandemic.

“This is not about freedom or personal choice,” he said on Thursday. “It’s about protecting yourself and those around you.”

The argument can provoke the very kind of setback Biden’s team is concerned about.

“Federal government mandates of dubious legality will further alienate the skeptics, undermine our institutions and punish ordinary business owners and their employees,” Senator Pat Toomey, R-Pa., Said Friday.

But in a statement, White House officials said the president was “obliged to pull every possible lever” in the fight against the pandemic. The statement said: “The reason the Department of Labor can take this crucial step in protecting Americans from COVID-19 is because Congress passed law requiring the Department to take action if it did identifies a serious risk to workers.

“This action is both clearly legal and necessary to save lives and stop the spread of COVID-19,” it said.

White House officials said OSHA, an agency of the Department of Labor, will be preparing a “temporary emergency standard” over the next few weeks that will require companies to take certain measures.

In order to establish an emergency standard, the law requires the administration that “workers in the workplace are exposed to a hazard that poses a serious threat to their health or safety”. You must also demonstrate that the method used to reduce these hazards is effective in protecting the safety of workers.

In the case of the COVID-19 vaccine, the government will argue that the death and illness caused by the Delta variant of the coronavirus are “a grave threat” to workers across the country and that the vaccine is an extremely effective one Means of preventing severe cases are illness, hospitalization and death.

These arguments are likely to be included as part of a preamble to regulatory language drafted by OSHA and Labor Department officials, according to a White House official who spoke on condition of anonymity to discuss regulations that are still under development.

Once the regulations are in place, OSHA will enforce them using the usual tools available to the Agency: collecting reports of violations and sending inspectors to companies. And for companies that refuse to enact the rules, the agency can fine $ 13,600 for minor violations and $ 136,000 for larger violations.

Kathryn Bakich, senior vice president at Segal, a social benefits consultancy, stated that “this is the first vaccine mandate ever for private employers”. However, she added that many employers are already “moving rapidly towards a mandatory vaccination policy”.

Wendy K. Mariner, professor emeritus of health law, ethics and human rights at Boston University School of Public Health, said the government’s logic made legal sense.

“Employers have a duty of care for a safe job under the Occupational Safety and Health Act,” she said. Given the virus’s transmissibility, she said, “It makes perfect sense to require vaccinations (or testing / masking for those with contraindications to the vaccine; and shelter for people with disabilities under ADA) to protect all employees and customers. Customers and Patients. “

Speaking on Thursday, Biden said it would be weeks, if not longer, for many of his proposals to take full effect – a delay that has real-life ramifications as the Delta variant of the virus fills hospitals with critically ill patients. who refused to be vaccinated. The president didn’t say why he waited until early September to take steps many health professionals called for in July.

But one thing was clear: He’s tired of pampering, urging, persuading, begging and even begging people to be vaccinated. Those without the shot put everyone else at risk, he said, preventing the country from leaving the pandemic behind once and for all.

“We cannot allow these actions to stand in the way of protecting the vast majority of Americans who have done their part and want to return to normal,” he said.


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