December 6, 2021

Volume XI, Number 340

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December 06, 2021

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Biden Workplace Vaccination Rule Challenged by States

Twenty-six states have filed suit to challenge the emergency temporary standard regarding COVID-19 Vaccination and Testing (the “ETS”) issued by the Occupational Safety and Health Administration (“OSHA”) on November 4, 20201, and published in the Federal Register on November 5, 2021. Federal courts have previously held that OSHA rules are ripe for challenge when the rule is published in the Federal Register. Within hours of publication in the Federal Register, the legality of the OSHA ETS is pending in the 5th, 6th, 8th, and 11th U.S. Circuit Court of Appeals.

A coalition including Missouri, Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, Wyoming, and five additional private entities (the “Coalition”) filed suit in the 8th U.S. Circuit Court of Appeals arguing that the power to compel vaccinations rests not with the federal government, but with the states. The Coalition argues that OSHA’s ETS goes beyond workplace safety and into public health policy, which the states assert exceeds OSHA’s statutory authority. Lawsuits filed by Texas, Louisiana, Mississippi, South Carolina, and Utah in the 5th U.S. Circuit Court of Appeals, Florida, Alabama, and Georgia in the 11th U.S. Circuit Court of Appeals, and Kentucky, Idaho, Kansas, Ohio, Oklahoma, Tennessee, and West Virginia filed in the 6th U.S. Circuit Court of Appeals similarly challenge the legality of the OSHA ETS.

Kentucky, Ohio and Tennessee also filed suit challenging the Biden Administration’s mandate requiring federal contractors to be vaccinated. The lawsuit sets forth similar bases to challenge the federal contractor mandate, alleging that the police power to enforce vaccines rests with the states, not the federal government. Likewise, the states assert that the federal contractor mandate exceeds the President’s statutory authority.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XI, Number 309
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About this Author

Associate

Isaac Caverly focuses his practice on a wide variety of employment-related matters. Isaac is committed to understanding the industry in which clients operate and he provides valuable counsel to employers as they face sensitive workplace matters. His experience includes conducting discovery research and drafting memoranda related to employment cases and summary judgements as well as conducting employment due diligence for corporate transactions. Prior to joining Polsinelli, Isaac was a summer associate and served as a congressional intern and served as Co-President of the Iowa Student Bar...

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Lilian Doan Davis, Polsinelli PC, Public Corporation Liabilities Lawyer, Whistleblower Claims Attorney
Associate

Lilian Davis helps private and public corporations, individuals, and municipalities identify and address potential liabilities. She brings a passion for the practice of employment law and a genuine interest in developing a strong relationship with her clients while gaining a thorough understanding of their business. Lilian understands the ongoing issues facing employers from a variety of perspectives. She counsels clients on management, compliance, and regulatory issues and investigates and responds to charges of employment discrimination. Her practice includes...

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