Attorney General Alan Wilson and 23 other attorneys general (AGs) sent a letter to President Biden today, warning that litigation will follow the implementation of the proposed mandate on private sector employees to either get a COVID-19 shot, submit to weekly testing, or be fired. The coalition of AGs outlined their legal and policy concerns with the mandate, which will be carried out through an Occupational Safety and Health Act emergency temporary standard.
“Regardless of how you feel about vaccines, President Biden’s edict is illegal and if the administration doesn’t change course we’ll pursue every legal option to strike it down,” Attorney General Wilson said. “I’m fully vaccinated and encourage everyone who can to get the shot, but this is a question of following the law. We think it will also mean fewer people will get vaccinated, which we’ve already seen in New York, where healthcare workers quit because of New York’s vaccine mandate.”
History has shown that the judicial branch is highly skeptical of the use of OSHA emergency temporary standards because of concerns about federalism and the separation of powers. Further, the AGs raise concerns about the expansion of a federal regulatory agency and public perception of the order’s constitutionality.
The coalition of AGs goes beyond legal arguments to address practical policy considerations of such a sweeping order. Most concerning is the potential to drive individuals out of the workforce, particularly healthcare workers, who are most needed right now to fight the pandemic. Additionally, this mandate ignores the tens of millions of Americans with natural immunity and will drive further skepticism of vaccines.
Last, and perhaps most importantly, the AGs note there are alternatives to a broad, nationwide order. The letter states, “The risks of COVID-19 spread also vary widely depending on the nature of the business in question, many of which can have their employees, for example, work remotely. The one-size-fits-almost-all approach you have decreed makes clear that you intend to use the OSHA statute as a pretext to impose an unprecedented, controversial public health measure on a nationwide basis that only incidentally concerns the workplace.”
South Carolina was joined on the letter by the attorneys general of Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Dakota, Texas, Utah, West Virginia, and Wyoming.