Bloomberg Law
Sept. 11, 2021, 1:24 AM

Top DOL Lawyer Courts Business Support for Biden’s Vaccine Order

Ben Penn
Ben Penn

The U.S. Labor Department’s chief attorney sought to win the U.S. Chamber of Commerce’s support Friday for the Biden administration’s upcoming rule to require vaccinations or virus testing at much of the private sector—and acknowledged the potential for a legal challenge.

Solicitor of Labor Seema Nanda held a virtual meeting with Neil Bradley, the Chamber’s chief policy officer, and other business lobbyists. The Chamber, the largest business lobbying group in the U.S., has yet to publicly declare a position on the coming Occupational Safety and Health Administration emergency rulemaking.

It was one of at least three briefings the department held Friday for labor union leaders and employer associations—constituencies the White House hopes to forge partnerships with to lift the vaccination rate nationwide. Information from the calls was disclosed to Bloomberg Law by eight sources who took part, all of whom requested anonymity because they didn’t have approval to speak publicly.

At one of the other sessions, OSHA officials urged business attendees to voluntarily begin the process of adopting vaccination mandates at their workplaces, without waiting for the agency to release its rule, according to two sources. OSHA officials said the emergency rule would be released in a matter of weeks.

Nanda, who took part in only the call with Chamber officials, acknowledged the potential for the OSHA rule to be challenged in court, two of the sources said.

She said the regulation will apply to the 26 states, plus Puerto Rico and the Virgin Islands, that are governed by their own state workplace safety plans, thereby extending the mandate’s scope to state and local public employees, including at public schools, according to two of the sources. Jim Frederick, OSHA’s acting leader, repeated this detail at the meeting for labor stakeholders, according to two other sources.

Those jurisdictions, reflecting a mix of red and blue states, would have 30 days after the rule is released to adopt the federal regulation or develop a measure of their own that’s at least as effective, Nanda and Frederick told their audiences.

The application to state plans and public sector workplaces wasn’t mentioned in the White House’s rollout of the directive on Thursday. It generated questions from the Chamber’s attendees about legal implications, including what would happen if a state simply refused to implement a vaccine standard. Nanda replied diplomatically, two sources said, saying the department would then work with that state and that the federal occupational safety agency does have oversight responsibility over the states that have their own occupational safety plans.

The White House has tasked OSHA to issue what’s called an emergency temporary standard that would force companies with 100 or more employees to ensure their workforces are either “fully vaccinated” or test negative for Covid-19 at least once a week. Businesses would also need to provide paid time off for employees to get the shot and recover from any reactions.

Nanda, as DOL solicitor, has one of the most consequential legal roles in government. It’s ultimately her responsibility to ensure that every regulation and policy that clears the Labor Department will withstand legal scrutiny.

Although the OSHA officials stipulated they couldn’t discuss much of the rule’s substance as it was still not complete, they offered a window into the administration’s thinking on several critical components.

For instance, the agency won’t conduct any further listening sessions with outside groups, partly because it faces a severe time crunch to complete the emergency rulemaking, which doesn’t necessitate the lengthier public comment process required for a traditional rule. Businesses, unions, and other organizations will be allowed to submit comments after the standard takes effect.

The department officials said they hadn’t yet decided whether employers will be on the hook to cover the costs of Covid-19 testing, but several business advocates said in interviews that they suspect companies will be forced to foot the bill.

When pressed during the worker-side meeting for a specific timeline for the rule’s release, an OSHA official replied that the agency was working “as expeditiously as possible” but provided no more specificity than to say “in the coming weeks,” multiple sources said.

One attendee of the meeting for labor leaders, Obama-era OSHA chief of staff Debbie Berkowitz, left the call optimistic about the administration’s effort, but emphasized that any DOL action won’t be enough.

“I want to make it clear that OSHA standards are always a minimum, like a minimum wage,” Berkowitz said. “And this is really the minimum that employers should be doing.”

DOL media representatives didn’t immediately respond to a request for comment. Two Chamber officials declined to comment.

—With assistance from Fatima Hussein

To contact the reporter on this story: Ben Penn in Washington at

To contact the editor responsible for this story: John Lauinger at; Jo-el J. Meyer at