Vaccine Mandate Lawsuit Could Be ‘Uphill Climb,’ Expert Says
By Marek Mazurek
South Bend Tribune
SOUTH BEND – Indiana officials are mounting opposition to a recently unveiled federal mandate that will require Americans who work at companies with 100 or more employees to get vaccinated against COVID-19.
However, some experts expect lawsuits filed against the federal government to be difficult to win based on legal precedent.
The mandate, which was announced by President Joe Biden in September but enacted Thursday, requires workers at medium and large businesses to either become vaccinated by Jan. 4, 2022, or undergo weekly COVID testing.
The rule does allow for exemptions based on medical or religious exemptions.
The Associated Press reports that new mandate will cover more than 84 million people, though it is not known exactly what percentage of that group is already vaccinated.
More than 740,000 Americans have died from COVID.
Hours after the rule went into effect Thursday, Gov. Eric Holcomb released a statement opposing the mandate and indicated Indiana would join nearly two dozen states in filing a lawsuit against the federal government over the mandate.
“This is an overreach of the government’s role in serving and protecting Hoosiers,” Holcomb said a statement. “While I agree that the vaccine is the tool that will best protect against COVID-19, this federal government approach is unprecedented and will bring about harmful, unintended consequences in the supply chain and the workforce.”
Other Indiana Republicans have also moved against the mandate. On Wednesday, Sen. Mike Braun announced he is leading a group of 40 other Senate Republicans, including fellow Hoosier Republican Sen. Todd Young, to challenge Biden’s vaccine mandate under the Congressional Review Act.
April Sellers, a clinical professor of business law and ethics at the IU Kelley School of Business said she is not surprised about Holcomb and Attorney General Todd Rokita’s opposition to the new rule, based on their previous comments.
However, any state filing a lawsuit seeking to overturn the mandate faces “an uphill climb,” she said, as legal precedent gives the federal government broad power to regulate workplace safety. The fact that the COVID-19 pandemic has been declared a public health emergency by two presidents also works in favor of the new mandate in a legal setting.
“I understand there are people who see it differently, who think it is breaking new ground. But really, it is in a long line of federal mandates that exist already,” Sellers said.
Holcomb’s immediate goal, Sellers said, is likely to have a court issue an injunction on the federal order to prevent it from going into effect while the legality of the mandate is litigated.
“You can really only ask the court to pause the effect of a law if you can show that you have a high likelihood of winning eventually,” Sellers said.
Sellers also noted that many companies of 100 workers or more already have vaccination mandates in place.
In fact, some of St. Joseph County’s largest employers, including the University of Notre Dame and St. Joseph Health System, already have vaccine mandates for employees. Notre Dame also has a vaccine requirement for students.
“Generally those employers have a lot less catching up to do than others,” Sellers said.
The mandate requires companies to give employees paid time off to get vaccinated in addition to sick leave for side effects caused by the vaccine. Employees who do not get vaccinated must be tested weekly and if they test positive for COVID-19, must be removed from the workplace.
Many states, including Indiana, operate a state-level OSHA agency that oversees workplace regulations, however, any state plan that does not require vaccines or weekly testing will not be in compliance with the federal order.
Close to 70% of Americans ages 12 and older are fully vaccinated. Data from the St. Joseph County Health Department shows just over 52% of the county is vaccinated.
This article was made available by Hoosier State Press Association.