ADEL — Iowa Gov. Kim Reynolds continued this week to signal her desire to take on the federal government’s coming COVID-19 vaccine requirement for large businesses.
But one legal expert in Iowa said any such legal challenge likely faces an uphill battle.
President Joe Biden’s administration plans to issue a requirement that all U.S. businesses with more than 100 employees require its workers to be vaccinated against COVID-19 or submit to regular testing. Roughly 2,000 businesses in Iowa employ more than 100 workers, according to federal data.
When asked about the pending federal rule this week at a news conference held at a spring manufacturing plant, Reynolds said she is discussing with her administration how they might challenge the rule in the courts.
“I do not believe in mandating vaccines. I’ve been very clear about that,” Reynolds said. “I believe that is a personal choice.”
Reynolds received the COVID-19 vaccine during a press conference in March, and she has encouraged Iowans to get the vaccine as well.
However, Reynolds also has generally opposed COVID-19 vaccine mandates, saying that decision should be allowed to be made individually.
“We’re going to see what is the best route (for a legal challenge), what are our options moving forward and how do we get this stayed so we’re not mandating that an individual make this decision between feeding their family or getting a vaccine that they fundamentally do not believe they should,” Reynolds said at this week’s press conference.
That comment drew applause from many of the plant workers who had assembled for the press conference, even though it was not completely accurate. The federal rule does not force workers at large employers to decide between the vaccine and their jobs; workers who decline to be vaccinated have the option to retain their job if they get tested weekly for the virus.
Biden defended vaccine mandates during a recent town hall forum televised by CNN.
“I waited until July to talk about mandating, because I tried everything else possible. The mandates are working,” Biden said, referring to major U.S. companies that have required vaccines and seen small percentages of their workforce opt to quit.
Regardless, any legal challenge to the pending federal rule faces a difficult road, said Prof. Denise Hill, director of Drake University’s health law program and an expert on health care policy, law, ethics and compliance.
“I think most courts would be persuaded, regarding precedence in public health, that this (federal rule) should be upheld,” Hill said. “People who have appealed vaccine mandates across the country … have not been very successful in getting a stay.”
Hill said she expects any legal challenge by the state would center on the Biden administration’s use of the Emergency Temporary Standard, under which the federal Occupational Health and Safety Administration, or OSHA, can issue a rule that goes into effect immediately.
Hill said the state’s legal challenge could also attack the fact that the Biden administration implemented the rule only for large employers, exempting those with fewer than 100 employees.
But the federal government could defend both of those arguments, Hill said, for example by pointing out that the government first and for more than a year tried advocating for voluntary vaccine participation before deciding to move to a requirement for large businesses.
“When it comes to the federal government, because so many companies are national in scope and there’s interstate interactions, we have OSHA, where Congress made it very clear and gave very wide discretion to the secretary in the (U.S.) Department of Labor and OSHA to take those steps necessary to protect people in terms of their safety on the job,” Hill said. “And of course, OSHA is about safety on the job.”
Hill said even conservative justices have declined to halt vaccine requirements. In August, U.S. Supreme Court Justice Amy Coney Barrett, who was appointed by former President Donald Trump, declined to block Indiana University’s requirement for all students to be vaccinated from COVID-19.
“The fact that even very conservative justices are not finding this to be such a fundamental breaking down of people’s rights that they’re not taking the step to put a stay in place suggests to me that (the courts) are not going to change that tune,” Hill said.
Almost two-thirds of Iowans 12 years and older — the segment of the population that is eligible to receive the COVID-19 vaccine — is fully vaccinated, according to federal data. That is the 24th-highest rate in the country.