Biden's vaccine rules to set off barrage of legal challenges

Vaccination “has become politicized and there are many Republican district judges who might be hostile to the regulation for political reasons," said Michael Harper, a Boston University law professor.

“I could imagine an unfortunate opinion that attempted to justify this political stance by rejecting the use of OSHA against infectious disease rather than against hazards intrinsic to the workplace,” Harper wrote in an email.

The expansive rules mandate that all employers with more than 100 workers require them to be vaccinated or test for the virus weekly, affecting about 80 million Americans. And the roughly 17 million workers at health facilities that receive federal Medicare or Medicaid also will have to be fully vaccinated.

Biden is also requiring 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 workers.

Republican-dominated Montana stands alone in having a state law on the books that directly contradicts the new federal mandate. The state passed a law earlier this year making it illegal for private employers to require vaccines as a condition for employment.

But University of Montana constitutional law professor Anthony Johnstone said the federal rules would trump the state law. That means larger Montana businesses that previously couldn’t require their employees to get vaccinated will now likely be required to, including hospitals that are some of the largest employers in the sparsely populated state.

Given that the rules are still being drafted and haven't been released, experts say the devil is in the details. It remains to be seen exactly what the rule will require employers to do or not do, and how it accounts for things such as other rights that unvaccinated employees may assert, such as the right to a disability accommodation, Pandya said.

For example — with the growing number of fully remote businesses and workers — if the rules are written to include people who don't have workplace exposure, “there certainly is room for an issue there," said Erika Todd, an employment attorney with Sullivan & Worcester in Boston.

Charles Craver, a labor and employment law professor at George Washington University, said the mandate presented a “close question" legally. But he said the Biden administration did have a legitimate argument that such a requirement was necessary for employers to protect the safety of workers, customers and members of the public.

The thornier question, though, is how employers — and courts — will sort through requests for accommodations for employees on religious or other grounds.

Though such accommodations may include having an employee work from home, “you can have a situation where someone has to be present and you can’t provide an accommodation because of the danger involved," he added.

“I would not be a betting person if this went up before the Supreme Court,” Craver said. “I could even picture the court divided 5-4, and I wouldn’t bet which way it would go.”