GOP pushes back on vaccine mandate for private companies

Andrew Demillo and Geoff Mulvihill
The Associated Press

LITTLE ROCK, Ark. — President Joe Biden’s mandate for many private employers to require their workers to be vaccinated against COVID-19 is facing a wall of opposition from state Republican officials who are passing laws and signing orders to exempt workers, threatening businesses that comply and preparing a legal fight over rules that were announced Thursday.

“This rule is garbage,” South Carolina Attorney General Alan Wilson, a Republican, said Thursday through a spokesperson. “It’s unconstitutional, and we will fight it.”

Missouri Attorney General Eric Schmitt said in a statement that he intended to file a lawsuit Friday.

“The federal government does not have the authority to unilaterally force private employers to mandate their employees get vaccinated or foot the bill for weekly testing,” Schmitt said in a statement.

States have been preparing for the requirement since Biden previewed it back in September. The Occupational Safety and Health Administration requirements released Thursday call for companies with 100 or more employees to be vaccinated by Jan. 4 or be tested weekly. Failure to comply could result in penalties of nearly $14,000 per violation. Federal officials also left open the possibility of expanding the mandate to smaller employers.

Lawsuits planned: Republican governors or attorneys general in Alabama, Arizona, Florida, Indiana, Iowa, Louisiana, Missouri, Montana and South Dakota said Thursday that they would file lawsuits against the mandate as soon as Friday.

“While I agree that the vaccine is the tool that will best protect against COVID-19, this federal government approach is unprecedented and will bring about harmful, unintended consequences in the supply chain and the workforce,” Indiana’s Eric Holcomb said in a statement.

At a news conference, Florida’ Gov. Ron DeSantis criticized what he called an “executive fiat” for the private sector. Iowa Gov. Kim Reynolds characterized the mandate as an imposition on personal choice, saying people should be able to make their own health care decisions. She recently signed a bill guaranteeing that people who are fired for refusing a vaccine can qualify for unemployment benefits.

Biden, in a statement Thursday, dismissed the argument from many GOP governors and lawmakers that a mandate will hurt businesses’ ability to keep workers on the job.

“There have been no ‘mass firings’ and worker shortages because of vaccination requirements,” he said. “Despite what some predicted and falsely assert, vaccination requirements have broad public support.”

The legal challenge to Biden is expected to be broad-based and quick. All 26 Republican state attorneys general have said they would fight the requirements, and most of them signed a letter to Biden saying as much.

Does OSHA have authority? Key to their objection is whether OSHA has the legal authority to require vaccines or virus testing.

In the letter to Biden, the top state government lawyers argued that the agency can regulate only health risks that are specific to jobs — not ones that are in the world generally. Seema Nanda, the top legal official for the U.S. Department of Labor, which includes OSHA, says established legal precedent allows rules that keep workplaces safe and that those rules pre-empt state laws.

That hasn’t stopped state lawmakers and governors for taking a variety of actions aimed at undercutting federal mandates.

Texas Gov. Greg Abbott last month issued an executive order prohibiting private companies or any other entity from requiring vaccines.

An Ohio lawmaker has proposed a bill barring schools and colleges from expelling students who refuse vaccines and preventing employers from firing workers who do so.

Arkansas has adopted a law creating a vaccine-mandate exemption for workers who can prove they have COVID-19 antibodies, although a broader measure banning employers from asking about vaccination status failed in the Legislature. The OSHA rule does include a religious exemption, as well as one for people who work exclusively outdoors or away from others — such as from home.

Lawmakers or governors in states including Kansas, South Dakota and Wyoming have called for special legislative sessions to counter vaccine mandates. In Nebraska, not enough state lawmakers agreed to a special session to get one on the calendar, but Gov. Pete Ricketts, a Republican in a GOP-dominated state, has been pushing them to keep trying.

“Right now, there are Nebraskans who are losing their jobs over vaccine mandates,” his office said in a Facebook post Thursday. “Until more Senators step up, these people who are hurting won’t get the help they need.”

In Ohio, factory owner Ross McGregor said he will follow the rules as he would any federal workplace mandate, but not because he agrees with them. McGregor is opposed to the new requirement, just as he has publicly opposed efforts by Ohio Republican lawmakers to prevent him from mandating the coronavirus vaccine for his workers.

“At the end of the day, every employer, and every employment situation, dictates what is best,” said McGregor, a former Republican state lawmaker and owner of axle and brake component manufacturer Pentaflex, where he estimates that about half the 115 or so employees are vaccinated. “Having either a ban on mandates or an imposition of mandates goes against that.”

Key points of the vaccine mandate

What do companies have to do?

Companies with 100 or more employees must require those workers to get fully vaccinated — with two shots of the Moderna or Pfizer vaccines, or one shot of Johnson & Johnson — by Jan. 4. After that date, any employee who remains unvaccinated must provide a verified negative COVID test weekly. Companies aren’t required to pay for those tests. Unvaccinated employees also must wear masks. The requirements don’t apply to people who work at home or who work outdoors.

Will workers get time off to get vaccinated?

Starting Dec. 5, employers must offer paid time off for workers to get vaccinated and sick leave if workers experience vaccine side effects.

How will this be enforced?

The Occupational Safety and Health Administration will assist companies with vaccination plans. It will also enforce the rules. Fines for noncompliance will vary based on a company’s size and other factors, but companies might have to pay up to $13,653 per individual violator. But enforcement will be difficult. OSHA has only around 1,850 inspectors to oversee 130 million workers at 8 million companies.

Is this legal?

OSHA says it’s on sound legal footing and has the emergency authority to issue rules that protect workers from an imminent health hazard. It also says the rules pre-empt all state law.

What about smaller companies?

OSHA said Thursday that the mandate could be expanded to companies with fewer than 100 workers. The agency said it will make a decision after collecting public comment on that proposal for the next 30 days.

What are the rules for health care workers?

Workers at health care facilities that treat Medicaid and Medicare patients must be fully vaccinated by Jan. 4. There is no weekly testing option for those workers, but they can ask for religious or medical exemptions.

What about federal contractors?

In September, the Biden administration said it would require employees at federal contractors to get vaccinated by Dec. 8. On Thursday, it pushed back that deadline to Jan. 4.