Labor law expert says Biden’s vaccine mandate could result in higher wages, benefits

COLUMBIA, S.C. (WCSC) - A labor law expert from the University of South Carolina said he expects wages and benefits will rise in response to the federal vaccine mandate that President Joe Biden announced last week.

The requirement will affect about 100 million Americans, according to the White House, compelling most of them — those who work for employers with 100 or more employees — to either get vaccinated or get tested every week. The mandate will also require vaccinations for federal workers and contractors, as well as healthcare workers at facilities that participate in Medicare and Medicaid.

Professor Joseph Seiner of the University of South Carolina School of Law said putting this additional obligation on employers may make it even harder to attract employees than it currently is in an already difficult market.

“If a certain number or group of workers don’t want to get vaccinated, now you’re taking those workers off the table,” he said, explaining that supply-and-demand issue will result in better pay and benefits for those who are willing to work for a company mandating vaccinations.

The Biden administration said it can require these private-sector employers enforce this mandate through OSHA, the Occupational Safety and Health Administration.

To do this, the White House said OSHA will issue an Emergency Temporary Standard, a rule it is authorized to impose if it determines “workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them.”

But Seiner said these standards can be difficult to implement.

“When they have been challenged in the past, they haven’t had a whole lot of success with respect to doing these regulations quickly, and they’re notorious for, just more generally, not having a whole lot of enforcement power,” he said.

White House Press Secretary Jen Psaki said OSHA is still working on crafting that Emergency Temporary Standard, and that “answers will come in the coming weeks.”

South Carolina OSHA, which operates under the state’s Department of Labor, Licensing and Regulation, wrote to employers last week that it will evaluate the state’s response once it sees that language from federal OSHA.

Emergency Temporary Standards can be challenged in federal court, and Republican governors and attorneys general in more than 20 states have publicly opposed President Biden’s vaccination plan, with some saying they plan to legally challenge it.

South Carolina Attorney General Alan Wilson has said his office is reviewing the mandate and that it will “vigorously defend the rule of law and fight any overreach that may limit [individuals’] personal freedoms.” The attorney general’s office said Monday that there was no updates at that point on a possible legal challenge.

A spokesman for Gov. Henry McMaster said Monday, “The governor continues to work with elected officials here in South Carolina and elsewhere to determine the most effective way in which to fight these gratuitous, unconstitutional mandates.”

But Seiner does not believe state leaders would have legal standing to challenge the mandate.

“It would have to be challenged by one of these corporations that is subject to this particular provision,” he said.

Seiner said it could then take weeks or even months before a court rules on the mandate, adding that until this works its way through the court system, employers should treat it as an effective law that they need to respond to.

But he said it is difficult to predict if a judge will uphold the mandate or strike it down.

“You’re dealing with a novel issue with respect to, literally, a novel virus, so there is an emergency basis that we haven’t seen in a century to implement this type of regulation,” Seiner said. “But with that said, these regulations don’t have a really great history of being upheld in the courts when issued on an emergency basis.”

Seiner said whether a judge upholds the mandate or not, it does provide an opportunity right now for employers that had previously been on the fence about requiring worker vaccinations to do so.

“It certainly gives employers someone to point to and say, ‘This is something we have to go ahead and do now. We don’t want to be subject to these large financial penalties,’ and I think it is also attempting to create a positive momentum in that regard,” he said.