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Can private employers really mandate vaccines? Lawyer breaks down Biden mandate

Robyn Smith, a lawyer who represents workers against unfair employment practices, spoke about Biden's most recent measures.

LOUISVILLE, Ky. — After President Joe Biden announced new vaccine and testing requirements to curb the surge of COVID-19 cases and hospitalizations, many asked if and when the measures would be enforced.

Not only are executive branch employees and contractors who do business with the federal government required to be vaccinated, but all employers with more than 100 workers must also require vaccines or weekly testing.

Robyn Smith, a lawyer who represents workers against unfair employment practices, joined Louisville Mayor Greg Fischer's Tuesday COVID-19 briefing to break down the mandate for businesses and employees. Here are some of the top questions she was able to answer:

Can private employers really mandate vaccinations?

Yes, Smith said businesses can require the vaccine or weekly testing with medical or religious exemptions. 

"Unless Congress or Kentucky's General Assembly passes legislation that prohibits this sort of mandate, then the answer is...yes," Smith said.

How quickly will these measures be strictly enforced?

While some have expressed concerns about strict enforcement too soon, Smith said one of the Biden administration's goals is to make sure the economy is protected, meaning "what's reasonable for businesses will be balanced against the public need."

"I don't think that it's going to be as bad as most businesses think," Smith said. "I do think that businesses that are wise, especially those with 100 or more employees, will get out ahead of it and be talking to employees about what's to come."

What happens if a business objects to the regulation?

"We should expect that anybody with 100 or more employees is going to be subject to these requirements," Smith said.

While employers may not want to require vaccines or tests, Smith said "it's part of the cost of doing business."

"There's a general rule contained in the OSHA scheme that you have to supply your employees with safe workplaces," Smith said. "And as long as you have employees, you have that duty and that's part of what you accept in exchange for employing Kentuckians as your workers."

Can a business be shut down for not following requirements?

Smith said she expects businesses to be inspected for COVID compliance. Those businesses can be fined or shut down "in egregious cases."

"How strong they're going to come out of the gate is really a matter of executive's wisdom and decision-making discretion," Smith said. "It won't be too difficult for businesses to comply."

The mandate also opens the floor for employees to file complaints if their company is not following rules.

If an employee does not want to comply, can that impact their unemployment?

Smith said employees who do not comply with vaccination or testing mandates could "run the risk" of being seen as voluntarily unemployed by the unemployment office.

"An employer could also say we discharged you for being insubordinate when we required a vaccine," Smith said. "And while that might seem kind of harsh, I think that those are arguments the office of unemployment insurance is likely to accept."

RELATED: JCPS to consider testing, vaccine requirements for employees

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