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The Supreme Court to hold a hearing on Biden's vaccine and testing mandate

RACHEL MARTIN, HOST:

On Friday, the U.S. Supreme Court is set to hold a hearing on the Biden administration's vaccine and testing mandate. This is the rule that tells private companies, hey, if you have a hundred or more employees, then your workers need to get vaccinated or get tested weekly for the coronavirus. Industry trade groups have asked the court to block the requirement, which is set to take effect next month. Those groups include the National Federation of Independent Business. We're joined now by the executive director of NFIB's Small Business Legal Center. Karen Harned, thanks for being here.

KAREN HARNED: Thanks for having me, Rachel.

MARTIN: Well, why does your group oppose the mandate? Let's just start there.

HARNED: Right. Well, small businesses are continuing to manage unprecedented challenges like staffing shortages, supply chain disruptions and the ongoing COVID variants, including omicron. And as a result, this mandate is just pouring gasoline on what already is a fire that they are experiencing, trying to get their businesses back up and running after the last two years of this pandemic.

They are going to lose employees as a result of this mandate. And even just dealing with the testing and masking requirements for those that choose not to get vaccinated is going to be particularly problematic, especially for those employers that just have 100 to 500, you know, employees or have those employees spread out in multiple locations.

MARTIN: Well, let me ask you - because so much - the bulk, in fact, I dare say - of the economic woes are because of the pandemic, so by refusing to take the vaccine, I mean, by extension, the economic problems aren't going to resolve themselves.

HARNED: Well, again, you can't - at the end of the day, people are going to decide what they're going to do. And we do not even think, honestly, this is about whether or not to take the vaccine. We think this is about the legality of the whole construct of how this was done. Honestly, OSHA does not have authority to do such a mandate out of the agency itself for a virus that we all know and have experienced for two years does not just live in workplaces. It is ubiquitous. It is everywhere.

And so we are very concerned about the precedent of OSHA - OSHA being the one issuing this mandate, we are very concerned about the situation that OSHA is doing this without notice and comment because of all of the issues that we are experiencing, again, in the economy and just the flexibility that small business owners need to run their business that have not been considered when it comes to this mandate.

MARTIN: So if the requirement came from an agency other than OSHA, would you be OK with it?

HARNED: Well, we actually argued that this is, you know - when you look at the law on this, there is really no - the states are the ones that are charged with regulating public health and safety, not the federal government. So we even think there's a question as to whether or not there's even a federal role here. But surely, if there is a federal role, it needs to come from Congress and not an elected agency. And if it was an agency, again, I don't even think it can be OSHA because they're not tasked with public health. We've been hearing from CDC and HHS on those issues for two years. So...

MARTIN: And you don't think even - just in closing, you don't think even the requirement to test - you have a problem even with that, not just with the vaccine, but testing instead.

HARNED: Well, when it comes to - I mean, it is good that there is that option. Do not get me wrong. That is helpful. That said, we think that OSHA in having this requirement and doing this itself, the way they did it, without doing a notice and comment and the fact that it's...

MARTIN: Yeah.

HARNED: ...OSHA and not CDC is illegal.

MARTIN: Karen Harned with the National Federation of Independent Business, thank you for your time.

HARNED: Thank you. Transcript provided by NPR, Copyright NPR.