Eleven states file lawsuit over vaccine mandate for private businesses

Photo: Pramote Polyamate/Getty Images

On Friday, the states of Missouri, Montana, Arizona and Nebraska co-led an 11-state coalition in filing a lawsuit against President Joe Biden and his administration to halt the COVID-19 vaccine mandate on private employers with more than 100 employees. They're the first states to file suit against the vaccine mandate on private employers.

Five private employers also joined the challenge. A petition for judicial review was filed in the U.S. Court of Appeals for the Eighth Circuit, and a motion for stay is expected to be filed soon.

WHAT'S THE IMPACT?

The lawsuit challenges the Emergency Temporary Standard advanced by the Occupational Safety and Health Administration, which requires private employers with 100 or more employees to mandate their employees to get vaccinated or implement weekly testing and mask requirements. Noncompliant businesses could face steep fines.

According to the Missouri Department of Labor and Industrial Relations, there 3,443 private employers in Missouri with over 100 employees, meaning that roughly 1,289,588 employees in that state could be impacted by this vaccine mandate, according to a statement from Missouri Attorney General Eric Schmitt.

The petition states, "This mandate is unconstitutional, unlawful, and unwise. The federal government lacks constitutional authority under its enumerated powers to issue this mandate, and its attempt to do so unconstitutionally infringes on the States' powers expressly reserved by the Tenth Amendment. OSHA also lacks statutory authority to issue this mandate, which it shoe-horned into statutes that govern workplace safety, and which were never intended to federalize public-health policy.

"For over a century, the U.S. Supreme Court has recognized that policies on compulsory vaccination lie within the police powers of the States, and that 'they are matters that do not ordinarily concern the national government,'" the petition read.

"Until quite recently, the Biden Administration agreed. The White House stated on July 23 of this year that mandating vaccines is 'not the role of the federal government.' But on September 9, 2021, that position underwent a dramatic reversal. The President announced several sweeping vaccine mandates, including a vaccine mandate to be issued by OSHA that applies to all employers who employ more than 100 employees. OSHA published this 'emergency' mandate two months later, crafting an elaborate post hoc justification for a policy that the President had already dictated that it would impose."

The lawsuit is asking the court for an immediate stay pending judicial review.

In addition to Missouri, attorneys general from Arizona, Montana, Nebraska, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire and Wyoming also joined the lawsuit.

In late October, the Missouri Attorney General's Office also filed suit to halt the vaccine mandate for federal contractors and federally contracted employees.

THE LARGER TREND

Biden announced the vaccine mandate in early September. Also, the Centers for Medicare and Medicaid Services, in collaboration with the Centers for Disease Control and Prevention, announced at the time that emergency regulations requiring vaccinations for nursing home workers would be expanded to include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs.

Biden also called on large entertainment venues to require proof of vaccination to gain entry. He said his plan also increases testing and will keep kids safer in schools. He's also requiring all federal educators in Head Start to get vaccinated and is calling on all governors to require vaccines for all staff.

Organizations agreeing to the mandate include trade associations, research organizations and advocacy groups.

"Given the sharp rise in cases and deaths in the U.S., and recognizing that most new cases and the overwhelming majority of deaths occur among the unvaccinated, our organizations believe that a vaccine mandate is the primary way to assure the health and safety of our colleagues, family, friends, and communities," they said in a statement. 

The organizations include AcademyHealth, America's Essential Hospitals, AMCP, AMGA, ASHP, the Association for Community Affiliated Plans, the Association of Schools and Programs of Public Health, the Alliance of Community Health Plans, the National Alliance of State Pharmacy Associations, the National Health Council, the National Hospice and Palliative Care Organization, the National Pharmaceutical Council, the SNP Alliance, and the Society for Women's Health Research.

In October, researchers publishing in Scientific Reports found that mandates likely work to increase vaccine uptake, and appear to be having a positive effect across various ethnic groups, and for people predisposed to oppose measures that are forced on them.

A report that same month from the U.S Department of Health and Human Services found that COVID-19 vaccinations may have helped prevent hundreds of thousands of new COVID-19 infections and tens of thousands of deaths among seniors

The findings are being used to underscore the importance of vaccines in fighting against the still-ongoing pandemic, and to combat lingering vaccine hesitancy among certain populations.
 

Twitter: @JELagasse
Email the writer: jeff.lagasse@himssmedia.com