States Respond to President Biden’s Vaccine Mandate

September 17, 2021

 In response to President Biden’s recent vaccine mandate, at least one state has filed a lawsuit and attorneys general in 24 states, including Ohio, have come out in opposition and threatened legal action.

Arizona Attorney General Sues Biden Administration Over Vaccine Mandates

On Tuesday, Arizona Attorney General Mark Brnovich filed a lawsuit in the United States District Court for the District of Arizona. In its Complaint, the State of Arizona alleges that the vaccine mandates issued by President Biden violate the Equal Protection Clause of the United States Constitution by “favoring migrants” who cross into the country via the southern border, rather than U.S. citizens.

The lawsuit states: “Although the Department of Homeland Security (“DHS”) offers vaccination to aliens it apprehends unlawfully entering the United States, it does not insist that they be vaccinated—even if they are being released into the U.S., rather than being immediately deported… aliens unlawfully crossing into the United States are not bound by any federal vaccination requirement whatsoever. Their rights to choose to be vaccinated—or not—command the unadulterated respect of Defendants. Those of U.S. citizens: not so much. The same Administration that would not dream of infringing upon the right of unauthorized aliens to choose whether to be vaccinated (or not), has no equivalent regard for the rights of United States citizens.”

Arizona’s lawsuit is the first filed against the Biden administration thus far in response to its federal vaccine mandate.

24 States Threaten Lawsuits Over Biden Vaccine Mandates

In addition, the attorneys general for 24 states, including Ohio, sent a seven-page letter to President Biden asking that he reconsider the vaccine mandates or be prepared to face legal challenges in court. In this letter, the authors assert that authorizing OSHA to issue emergency temporary standards is not justified because OSHA did not determine that “employees are exposed to grave danger from exposure to substances or agents determined to be physically harmful or from new hazards” and that the “emergency standard is necessary to protect employees from such danger.” 29 U.S.C. §655(c)(1).

The attorneys general wrote: “If your Administration does not alter its course, the undersigned state Attorneys General will seek every available legal option to hold you accountable and uphold the rule of law.”

As of the date of this writing, the President had not issued a response to either Arizona’s lawsuit or the letter.

Biden Administration Vaccine Mandates: What We Know So Far

For background, on September 9th, President Biden issued two Executive Orders designed to slow the spread of the COVID-19 Delta variant. The “Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees” requires each agency that falls under the Executive Branch of the Federal Government to establish programs that require their employees to receive a COVID-19 vaccination. Biden extended the vaccine mandate to employees of government contractors by signing the “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Employees.”

The scope of these two executive orders extends to both federal employees and employees of government contractors and exempts members of congress and the judiciary. Notably, covered government employees cannot opt-out of the vaccination requirement by getting regularly tested and social distancing. According to USA Today, the federal vaccine mandate will cover approximately 90% of the 4 million federal workers.

President Biden also announced that he has directed the Occupational Health and Safety Administration (OSHA) to issue an emergency temporary standard, which are administrative rules that are not subject to notice and comment and can be made effective immediately upon publication, that mandates employers with 100 or more workers require the vaccine or conduct weekly testing of unvaccinated employees. Businesses are also required to provide paid time off for employees to get vaccinated or to recover if they become ill after receiving the vaccine.

While businesses with less than 100 employees are exempt, this new requirement will extend to other specific industries, such as nursing home facilities and hospitals that receive Medicare and Medicaid funds and employees of federal Head Start programs. The Administration believes that the scope of the vaccine requirement will extend to some 100 million workers and announced that workers that are subject to these requirements are still permitted to claim religious or medical exemptions that are recognized by law.

Businesses that fail to comply are subject to significant penalties, including a fine of up to $14,000 per incident.

Additional Lawsuits Expected

Based upon what has transpired in the exchanges between the states and The White House, it is clear that the private employer vaccine mandate that OSHA has been tasked with implementing, if implemented, will prompt a litany of litigation brought by state governments and private employers, alike. This litigation is an extension of what has already occurred in several states, such as New York and Washington, where vaccine mandates issued by state governments have been challenged in court. The decisions made by the courts in these cases will have a significant impact on defining the scope of the President’s authority and the relationship between employers and their employees.

The Litigation and Labor & Employment attorneys at KJK are closely following these developments and are available to answer any questions that employers or employees have about these executive orders and their potential impact.

If you have questions or would like to discuss further, please call us at 216.696.8700.