Dinsmore's Faith Whittaker Discusses Potential Legal Challenges to Biden's New Vaccine Mandate

September 10, 2021Quotes & Mentions
Lexington Herald-Leader

Following President Joe Biden's announcement that companies of 100-plus employees will soon have to mandate vaccines or weekly negative COVID-19 tests, Dinsmore Employment Chair Faith Whittaker spoke to McClatchy News about the legality, ramifications and potential challenges to such a regulation. Excerpts are below.

Faith Whittaker, chair of the employment practice at Dinsmore & Shohl in Ohio, said OSHA already had vaccine guidelines in place for private sector employees. Though the exact text of the rule hasn’t been released, she said it’s “essentially making what OSHA’s guidance is already into law.”


Whittaker said the rationale behind the 100-employee threshold is likely to prevent further spread of COVID-19 at companies with a large employee base where the virus is more easily transmissible. There are employers who aren’t covered by OSHA, but she said that “can get very complicated.”


Since the vaccine and testing requirement will be developed by OSHA, Whittaker said it “would be enforced the same sort of way from the Department of Labor standpoint.” That could mean enforcement by conducting inspections “based on imminent danger situation, fatality, or a worker complaint,” according to OSHA’s website.


Montana is the only state in the U.S. to bar vaccination status as a condition of employment, which the state’s legislature deemed “discrimination” under a new law passed this year, the Associated Press reported. The law would be in direct contradiction with Biden’s order.

“That’s going to become a federal preemption question, which is heavily litigated in and of itself,” Whittaker said.


If [employees] refuse and choose to quit or are subsequently terminated, Whittaker said, it would likely be harder for them to qualify for unemployment benefits. “If they have another option without having some sort of legitimate health reason to either getting tested or getting the vaccine, unemployment would say you are able-bodied and you chose not to follow the rule,” she said.


Whittaker said there is a high likelihood of Biden’s vaccine and testing mandate rule being challenged in the courts — particularly given the political climate surrounding the pandemic and related health and safety measures.

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