As President Joe Biden’s new COVID-19 vaccine mandates affecting employers reverberate around the nation, some of Nebraska’s top elected officials continued to criticize his approach.
Biden announced Thursday that employers with more than 100 workers must require those workers to be vaccinated against COVID-19 or undergo weekly tests. That could affect as many as 100 million Americans and tens of thousands of Nebraskans.
Additionally, Biden signed an executive order to require vaccination for employees of the executive branch and contractors who do business with the federal government — with no option to test out. That covers several million more American workers.
In a statement, Sen. Ben Sasse, R-Neb., asserted that the president’s requirements are “constitutionally dubious.”
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Rep. Don Bacon, R-Neb., went a bit further, saying in a statement: “Nothing in the Constitution gives the president the legal authority to put mandates concerning personal health decisions on the private sector.”
And Nebraska Gov. Pete Ricketts, also a Republican, went on the Fox Business Network on Friday to reiterate that he plans to work with the state attorney general “to explore all our options.”
“I’ve had businesses call me. I’ve had workers call me and tell me how much of burden this is going to be for them and ... the impact it’s going to have on small business in particular,” he said. “Everything we can do is going to be on the table to push back against this.”
Biden’s mandates are likely to be challenged in court. But two Omaha legal experts — Baird Holm attorney R.J. Stevenson and Creighton University associate law professor Kelly Dineen — said that based on what is known, the Biden administration appears to be within its rights as long as it doesn’t violate a person’s medical or religious objections.
The White House has directed the Occupational Safety and Health Administration to develop and publish a temporary emergency standard that can be used to regulate vaccination or testing of employees who work in organizations of more than 100 people.
In order to adopt such a standard, OSHA must establish that workers are in grave danger because of exposure to substances or agents determined to be toxic or physically harmful.
Stevenson wrote in a briefing memo: “That should not be difficult for OSHA to prove as the spread of COVID-19 remains out of control, the effects of the virus are often debilitating (if not fatal), and the vaccines are effective in terms of reducing serious illness and death from COVID-19.”
It is unclear when a temporary emergency standard will be published and thus go into effect, but Stevenson said it is logical to assume that could occur within several weeks. Once published, it will then undergo a process for consideration as a permanent standard.
A temporary emergency standard can be challenged in federal appeals court. But Stevenson wrote that courts have typically given significant deference to OSHA on the necessity of such standards and will likely do so in this case as well.
Dineen voiced similar thoughts.
“As long as it aligns with the health of the workers in the workplace, it’s likely to be absolutely legally valid,” she said. “But it’s hard to say until we see exactly how it’s worded.”
This report includes material from the Associated Press.