Republican-led states threaten lawsuits as OSHA unveils vaccine mandate for businesses

Already one state, Arizona, has filed a lawsuit over the mandate, and Republican attorneys general in as many as 23 other states have threatened lawsuits, arguing that OSHA’s vaccine mandate would be illegal because COVID-19 is not a work-related hazard that falls under OSHA’s jurisdiction. They also claimed it would cause workers to leave their jobs in a tight labor market. The deadline for compliance was already extended until after the holidays, because the U.S. Chamber of Commerce and the Business Roundtable lobbied the Biden administration about the holiday pressures on businesses, particularly retail stores.  

“I’m confident there are plenty more lawsuits ready, willing, and able,” says Paul Porter, an employment attorney at Cromer Babb Porter & Hicks LLC in Columbia, S.C. 

The legal challenges could possibly delay enforcement of the OSHA mandate, resulting in a series of emergency reviews and appeals that could reach the Supreme Court, although the courts have upheld vaccine mandates so far.
One of the biggest legal challenges is whether OSHA can prove there is a “grave danger” to employees that necessitates a mandate. “The merits of the rules, such as the grave danger argument, might be moot if, God willing, the pandemic truly ends before the matter is fully litigated,” says Marc Sherman, an employment attorney and partner at Conway, Farrell, Curtin & Kelly in New York.

Already, as many as 19 states have filed three separate lawsuits against the federal government over the separate executive order by the Biden administration that requires federal contractors to vaccinate workers. 

Last week, a number of states including Alabama, Georgia, Idaho, Utah, West Virginia, South Carolina, and Wyoming joined a lawsuit that seeks a postponement of the implementation of the executive order, arguing that the breadth and short deadline of the mandate puts “billions of contracting dollars in peril, including huge portions of some state agencies’ budgets.” Texas, which has banned private businesses from mandating vaccines, filed its own suit last week over the federal contractor mandate.

So far, however, the state lawsuits regarding federal contractors lack any arguments about violating personal liberties. Instead, most of the legal arguments by states are administrative and procedural in nature, notes Stacy Hawkins, a law professor at Rutgers University. “They are throwing everything against the wall to see what sticks,” she says.  

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