JOHNSON CITY, Tenn. (WJHL) – President Joe Biden Thursday announced that companies with more than 100 employees would either have to implement a vaccine mandate or subject those who remain unvaccinated to weekly COVID-19 testing.
The question of whether this aggressive move is constitutional was answered Friday by Lincoln Memorial Constitutional Law Professor Stewart Harris.
“It’s clearly constitutional for President Biden to impose a mass mandate on employers, employing more than 100 people,” Harris said.
He cited the Commerce Power from Article One in the United States Consitution.
“It gives Congress the authority to regulate businesses that have a significant effect on interstate commerce, which of course, any company of that size, probably would,” Harris said.
Harris explained that pursuant to that commerce power, Congress has passed statutes creating things like the Occupational Safety and Health Administration (OSHA), which sets rules for all sorts of industries. He mentioned as an example, most notably, OSHA requiring protective masks for coal miners.
“Now, if they can do that, then they certainly can require masks on a temporary basis for other employers, faced with a critical emergency of public health emergency. So this is clearly constitutional,” Harris said.
The constitutionality of the mandate was not top-of-mind for Crown Laboratories Chief Executive Officer Jeff Bedard on Friday when his team began formulating a plan to undertake such a mandate.
“I’ve been vaccinated, my three kids have been vaccinated,” Bedard said. “This isn’t really a political stance, it’s just good health, it’s good for the community. But once again, the government falls short in doing the right thing. And it’s not about mandates, but it’s about how they mandate.”
The Johnson City-based company employs 352 people, Bedard said, a qualifying factor for the mandate.
“There are millions of companies under 100 employees. That now put us at odds with competing against them for employees,” Bedard said. “So instead of just going to every company and saying ‘every worker should be mandated,’ now they’ve given the ability for the worker to once again choose whether they get vaccinated or not, because they can leave Crown, for example, and go to an employer that is under 100 employees. Much like they did with the added unemployment benefits, the government has now created a reason for us to compete against each other instead of doing this in a way that makes logical and complete sense. Go figure the government stepping in doing something and not doing it the right way.”
‘A testing option’
The Biden administration said that under the new mandate, qualifying employers would not have to force their more-than-100 employees to get the shot, but could subject them to weekly COVID-19 testing.
This caused a frustrated Bedard to grow even more so.
“It’s a complicated situation,” Bedard said. “And the reality is to date, we have not asked whether our employees are or not vaccinated. So I don’t know whether of the 352 that we have here in the Tri-Cities area, whether 300 are vaccinated or 52 are vaccinated. And that creates a bit of an issue. So the first thing that we have to get our arms around is how many are vaccinated or unvaccinated.”
He said it’s much different, for example, if 300 people would have to be tested weekly versus far fewer.
“I have to bring somebody on staff to do that testing and how long that would take and the logistics nightmare that that would create,” Bedard said. “If it’s 20 employees, I think most businesses could handle that. They can give the employee a choice at that point, whether they get vaccinated or not. Because the onerous situation of having to test everybody weekly would be less burdensome.”
Regardless of logistics, Harris explained that the weekly testing caveat would make the mandate less challengeable in court.
“Providing a testing option, though I don’t believe it’s constitutionally required, is designed, of course, to make this more palatable for people to make employers more likely to comply and workers more likely to comply, and ultimately to make the law itself seem more reasonable and defensible in court,” Harris said.
Harris said that precedent had already been established that would protect the mandate in a legal setting.
“We have coal miners in this region, right? If a coal miner simply went in and said ‘no, I’m not going to use my safety equipment, I refuse to do that and I’m not going to follow the safety regulations.’ Well, that coal miner would be out the door,” Harris said. “He’d lose his job or she would lose her job. In the same fashion, if a worker walks in and the employer says ‘I need to make sure you have a vaccination,’ and the worker says ‘no, and I won’t be tested,’ well then there’s the door.”
Harris explained that companies or workers could defy the mandate but would certainly face the consequences.
“You can file a lawsuit and take your chances in court. That tends to be rather expensive, but you can do it if you want to,” he added.
He also said that employees are free to resign from positions where they are required to follow the mandate and seek employment elsewhere.
“Sure, there are options out there, so when we talk about a vaccine mandate or a mask mandate or any other sort of public health mandate, we’re not talking about strapping people down on a gurney and forcing a needle into their arms. We’re simply saying that if you don’t do this, there will be consequences,” he explained.
Harris added that mandates of this nature are already being implemented and have been for decades.
“If you want to send your kids to school, you’ve got to show that they’ve been vaccinated for a wide range of childhood illnesses or you don’t go to school,” Harris said. “So why can’t we do exactly the same thing when in the middle of a pandemic that is killing people on a daily basis? I mean, I bet many of your viewers know people or have loved ones who are right now on respirators at death’s door or have relatives that can’t get into the ICU because all the beds are taken up with unvaccinated COVID patients. We are in a crisis. And when that sort of crisis exists, the power of the government increases to meet that crisis. And so I don’t think there’s any question about the constitutionality of these requirements.”
Several of the area’s largest employers provided statements to News Channel following Biden’s announcement.
Appalachian Power (AEP) sent the following statement:
We continue to focus on the health and safety of our employees and customers and have aligned our response to COVID-19 with guidance from state and federal health officials and our company doctor. We have strongly encouraged our employees to get vaccinated and have provided incentives to do so, but we are not currently requiring vaccines. We will be evaluating the Biden administration’s proposed rules to determine their impact on AEP.AEP
Eastman Chemical Company, one of the largest employers in the region, also provided a statement:
We will be working to determine the potential impacts of President Biden’s announcement of mandatory vaccination OR weekly testing of unvaccinated employees of companies with more than 100 employees. There is still much to learn about what this means for Eastman and our team members. It is our understanding that OSHA will develop and issue in the next several weeks an Emergency Temporary Standard (ETS) and its enforcement. Until such a rule is developed and published, we are unable to make further comments about the impact to our team members. Once the ETS is issued, we will gather all relevant information available and determine what these new rules mean for our company.Eastman
The Biden administration announced that larger companies would not be the only ones subjected to the mandate but federal employees and contractors too.
In a statement, Nuclear Fuel Services, based in Erwin, Tenn. said the following:
“As soon as vaccines became available, we highly encouraged employees to be vaccinated, and we opened an onsite vaccination clinic. We are reviewing the President’s plan, and once we receive further, detailed guidance from the government, we will fully comply with the directives that apply to us as a U.S. government contractor and/or employer of more than 100 people.”AFS
No timeline was provided on when the mandate would be implemented.