President Joe Biden declared Thursday that he had directed the U.S. Department of Labor (DOL) to create an “emergency rule” requiring all private businesses with more than 100 employees to impose new vaccine mandates on their employees.
There is a federal law empowering a federal agency, in this case the DOL’s Occupational Safety and Health Administration, to take emergency measures in the event of a major workplace hazard that appears unexpectedly and requires immediate action.
However, the coronavirus was declared a public health emergency in January 2020, and then a national emergency by former President Donald Trump in March 2020, and it appears that this statutory authority has never been invoked to deal with a workplace condition that has already existed and been dealt with for almost two years.
This raises the immediate legal issue that the statute might provide no authority for this mandate.
Biden did not cite any particular federal legal or constitutional authority to impose such a mandate on private companies, absent explicit authorization from Congress to do so.
Biden also announced that he had issued an executive order requiring vaccine mandates at all companies who receive reimbursement from Medicare or Medicaid. While the legality of that measure, too, is in doubt, there is at least some relationship between the businesses and the federal government.