President Joe Biden’s decision to require COVID-19 vaccination and frequent testing for millions of workers has drawn a political reaction along the usual partisan lines, with doctors and blue state governors cheering the move and red state govs vowing legal action.

Corporate America, meanwhile, has mostly come out in support, but with some definite objections and a plethora of questions about how the law will be applied and enforced.

In a statement, Business Roundtable President and CEO Joshua Bolten said his group – which includes heavyweight companies like JP Morgan Chase, Johnson & Johnson and Chevron – welcomed the administration’s ongoing efforts to get COVID-19 under control, further noting that many of their members already have vaccine mandates in place.

“America’s business leaders know how critical vaccination and testing are in defeating the pandemic, which is why so many have invested resources in encouraging and incentivizing their customers and employees to get vaccinated, including providing paid time off,” he said. “Over the past several weeks many companies have decided to implement a vaccine mandate for some or all of their employees, a decision we applaud.”

Ford Motor Company sounded a similar perspective, issuing a statement saying “We believe the vaccine plays a critical role in combating the virus and have already designated some roles where we require the vaccine” and noting “We will be assessing the new executive actions to determine what adjustments need to be made to our current vaccination policy as we continue to prioritize the safety of our employees.”

Other business groups are not so sure.

“We believe that the choice to have or not have a vaccine should be the choice of each individual American made in consultation with their family doctor,” Christopher Young, executive director of the American Association of Meat Processors, told the Washington Post. “The industry overall will lose good employees who have made the personal decision not to get the vaccine.”

In a letter to Biden, Consumer Brands Association CEO Geoff Freeman urged the president to provide “immediate clarity” on his administration’s six-pronged plan, saying “Federal agencies must move quickly, anticipate challenges, promptly answer questions and partner with the private sector if we are to realize successful implementation of the administration’s COVID-19 Action Plan and achieve our shared goal of increased vaccination rates.”

That letter reflects the kind of questions being asked in corporate boardrooms around the nation, many of which are centered on what part of all this will fall on businesses to track or enforce, and what timeline will apply to any of these actions.

Some of the other major business organizations, including the U.S. Chamber of Commerce and the National Retail Federation have taken a wait and see approach, expressing support for the concept of more vaccinations but wariness that the process not be too burdensome on businesses. 

A Six-Part Plan

The president’s plan has six areas of focus: 

  • Vaccinating the unvaccinated
  • Further protecting the vaccinated
  • Keeping schools safely open
  • Increasing testing and requiring masking
  • Protecting economic recovery
  • Improving care for those infected with COVID-19

The first tenet is the one causing the bulk of the heartburn. It applies to employers with 100 or more employees and would require them to either be vaccinated or test negative for the virus at least once a week. Companies that fail to do so could face fines, while workers who refuse to go along could face disciplinary actions that include suspensions or dismissal.

The plan further applies to all federal workers and contractors, with the exception of non-executive branch federal employees. Meanwhile, government workers who are covered under the plan will no longer be allowed to opt-out of the vaccination requirement by getting regularly tested and social distancing.

One key question: does the 100-worker requirement apply to a company’s total number of employees or only those at a specific worksite? And who will pay for the testing?

The answer is expected to come from the U.S. Department of Labor, which will be tasked with developing the standards for that portion of the plan, which will be enforced by the Occupational Safety and Health Administration (OSHA).

That has many unions clamoring for a seat at the table as those rules are being put together.

“Everyone should be vaccinated — as one step in stopping the pandemic,” AFL-CIO President Liz Shuler told Politico. “Workers and unions should have a voice in shaping these policies.”

States Vow Legal Action

The president’s announcement sparked immediate vows of litigation from many Republican governors, including South Dakota’s Kristi Noem, South Carolina’s Henry McMaster, Wyoming’s Mark Gordon and Georgia’s Brian Kemp.

Legal experts say the chances of legal action blocking the mandate are poor. OSHA’s standards would automatically pre-empt any existing state rules around vaccines, except in the 22 states with their own OSHA-approved workplace agencies.

“OSHA is a federal agency that has the authority to regulate businesses, and particularly large employers, to protect workers against disease,” Peter Jacobson, professor emeritus of health law and policy at the University of Michigan and director of the Center for Law, Ethics, and Health, told the Detroit Free Press. “It can mandate, for example, that workers have to wear certain safety goggles to protect against injuries, and take certain steps for injury prevention. It’s therefore, historically, well within OSHA’s purview.”

Larry Gostin, faculty director at Georgetown University’s O’Neill Institute for National and Global Health Law, told CBS News it is also well within the president’s purview under the auspices of the Occupational Health and Safety Act of 1970, which gives the federal government the authority to set and enforce safety and health standards for most of the country’s workers.

That unto itself won’t stop challenges, but Gostin thinks the plan itself is on strong legal footing.

“The first challenge that probably will be made is to say that when Congress passed OSHA, it intended to regulate unsafe conditions in the workplace, but not a vaccine or an infectious disease,” Gostin said. “But I think that’s a frivolous argument because a worker who is exposed to potentially a deadly infectious disease like SARS COV-2 is as much at risk, if not more, than of having a workplace injury. And the truth is that workers who are in close proximity to one another with a surging, highly infectious Delta variant are placed in an extraordinarily hazardous position, and it’s the responsibility of the president and the Department of Labor to ensure their safety.”

Cover for Both Sides

Many observers believe Biden’s plan will not only galvanize opinions on both sides of the vaccine issue, it will provide cover for each side to stick even harder to its guns.

“I think it’s very much in the private sector’s interest to require vaccination and to have the president order it gives them a certain amount of political and cultural cover,” Gostin said. “They can say, ‘Well it wasn’t me — we were required to do it.’ Many companies have already done it, many large companies, so this is not foreign or fully externally imposed. This is something that’s already happened in business.”

Meanwhile, Dr. Ashish Jha, the dean of the Brown University School of Public Health, thinks it will do the same for the anti-vaccine group.

“What the president does is he creates political cover for Republican leaders, who will scream loudly because it’s politically expedient,” he told the New York Times. “But I think many of them are actually feeling relieved, because now they don’t have to do the hard work of convincing their constituents.”

President Biden expressed his own displeasure at the GOP response.

“I am so disappointed that particularly some Republican governors have been so cavalier with the health of these kids, so cavalier with the health of their communities,” he told reporters after touring a D.C. school the day after he announced the plan. ”This is what this is. We’re playing for real here. This isn’t a game. And I don’t know of any scientist out there in this field that doesn’t think it makes considerable sense to do the six things I’ve suggested.”And what of those vows to sue?

“Have at it,” he said.

--By Rich Ehisen

Over Half of States have OSHA-Approved Workplace Safety Plans

Twenty-one states currently have workplace safety and health plans covering both public- and private-sector workers that have been approved by the federal Occupational Safety and Health Administration (OSHA), meaning the plans are at least as effective at protecting workers as the federal standards. Another five states have plans that only cover state and local government workers.