Recently, 24 state attorneys general submitted a letter strongly opposing President Joe Biden’s proposed COVID-19 vaccine mandate among private employers. These states have threatened legal action should the mandate’s efforts move forward. Earlier in September, Biden announced an upcoming mandate for employers with 100 or more employees. These businesses would need to require vaccinations among employees or have unvaccinated individuals submit to weekly COVID-19 testing.
The 24 states who signed the letter made the following key allegations against the mandate, among others:
- It will affect the job market and the ability to fill positions.
- It will increase vaccine skepticism.
- It is too broad, not accounting for nuanced employee situations.
The 24 states that signed the letter have targeted the emergency temporary standard (ETS) as the crux of their argument. The letter’s authors attest that the Occupational Safety and Health Administration’s (OSHA) ETS rules are very specific, and applying them to a vaccine mandate is an illegal overreach. It remains to be seen how these arguments may align with the reality of the mandate, as little is currently known about the specifics of the yet-to-be-released ETS.
What’s Next? The 24 states included in the letter claim they are ready to oppose the upcoming vaccine mandate in court. After Biden’s initial mandate announcement, legal opposition was expected, as OSHA’s emergency temporary standards are often the subject of litigation. However, regardless of courtroom challenges, applicable employers should still be prepared to comply with the ETS, as it’s possible that employers may be penalized for noncompliance while lawsuits work their way through the courts. On October 12th, OSHA delivered the ETS to the White House for review and comment. Once published, its rules may take immediate effect in states where federal OSHA has jurisdiction.
Stay tuned for more updates on this developing situation.