Biden’s mask mandate may trip up vaccine mandate

An occupational safety attorney says Biden's latest rule might not stand

President Biden's latest mandate for businesses with 100 employees or more to require their workers to get vaccinated against COVID-19 or conduct weekly tests on unvaccinated workers could face problems in court, according to an attorney specializing in occupational safety laws.

Julie O'Keefe, a partner at Armstrong Teasdale LLP, told FOX Business that while there may not be grounds to stand on to challenge the OSHA rule that impacts roughly 80 million Americans, there are certainly legal issues by which a court could overturn it – and it might come from the administration's own admissions that masks work.

White House vaccination

The White House defended the new mandate, saying COVID-19 presents a "grave danger" to workers. (istock / iStock)


"The constitutional issues to me might not be as difficult as the simple statute that requires us to show a ‘grave danger’ and that the emergency standard is necessary," said O'Keefe, an OSHA practitioner who counsels companies in willful, serious and repeat citations and criminal investigations

"In fact," O'Keefe continued, "some of the statements we've heard from the administration is that masks work.  Well, if masks work, is a vaccine and testing really necessary?" She added, "If social distancing works, if remote working works…then is testing and vaccination really necessary?"

White House press secretary Jen Psaki argued Friday that the Department of Labor had the grounds to implement the president's vaccine mandate under the 1970's Occupational Safety and Health Act, reasoning that COVID-19 presents a "grave risk" to workers and is therefore justified. Psaki argued during a press briefing, "certainly a pandemic that killed more than 600,000 people qualifies as ‘grave risk’ to workers."

O'Keefe went on to bring up a slew of other questions surrounding Biden's broad new rule, asking, "What about outdoor workers? Are people who work outside going to be subject to the same testing and vaccination as indoor workers? What about the looming issue of natural antibodies for those who have had COVID?" She also pointed out that many employees are not even exposed to their colleagues as they continue to work from home.


"They're definitely pushing the boundaries," O'Keefe argued about the Biden administration's latest dictate, adding, "It is definitely at the outer limits of OSHA's authority."

FOX Business White House correspondent Edward Lawrence contributed to this report.