Earlier this month, the federal government released the details of two administrative rules affecting an estimated 100 million workers or more, about two-thirds of the United States’ active labor force. The Occupational Safety and Health Administration (OSHA) is requiring all employers with 100 or more employees to ensure that their employees are either vaccinated against COVID-19 or tested weekly for the disease.
Meanwhile, the Centers for Medicare and Medicaid Services (CMS) is requiring about 17 million health care workers to be vaccinated for COVID-19, with no option for testing in lieu of vaccination. We previously reported on the OSHA and CMS rules here, and, as we covered here, the administration is also implementing vaccine requirements for federal employees and contractors and for servicemembers in the U.S. Armed Forces.
Almost immediately following the publication of the OSHA rule, Fox Business reported that at least 24 states with Republican attorneys general had filed various lawsuits against the federal government. A coalition of 11 states led by Missouri Attorney General Eric Schmidt (R) alleges that “the federal government lacks constitutional authority under its enumerated powers to issue this mandate… OSHA also lacks statutory authority to issue this mandate.” Other states including Florida and Texas have filed similar claims on their own.
Two Wisconsin manufacturers, Tankcraft and Plasticraft, together filed one of several dozen federal lawsuits challenging the new rule for employers. The companies are represented by the Wisconsin Institute for Law and Liberty (WILL), a conservative public interest law firm based in Milwaukee. WILL has been involved in other lawsuits related to COVID-19 policies, including cases challenging mask mandates and school closures in Dane County.
Wisconsin Manufacturers & Commerce (WMC), the combined state chamber of commerce and manufacturers’ association, announced November 17 that it had filed an amicus curiae brief in WILL’s lawsuit which, according to WMC’s press release on the matter, “explains why the OSHA mandate is illegal and how it would greatly harm Wisconsin businesses through mass resignations and expensive compliance costs.”
On November 12, the federal Fifth Circuit Court of Appeals granted a motion to temporarily enjoin implementation of the OSHA rule. On November 17, OSHA stated on its website that the agency “has suspended activities related to the implementation and enforcement of the [rule] pending future developments in the litigation.”
Also this week, National Public Radio reported that the Ohio-based Sixth Circuit Court of Appeals was selected by lottery to hear the consolidated challenges. The lottery was conducted after lawsuits regarding the OSHA rule were filed in each of the 12 federal circuit courts. The Sixth Circuit will decide whether to stay or lift the Fifth Circuit’s injunction and ultimately whether to uphold or strike down the policy. Regardless of the outcome in the circuit court, it is expected that the issue will reach the U.S. Supreme Court for a final decision.
While the OSHA vaccine mandate has generated the most controversy and led to dozens of lawsuits, there are also legal challenges to the CMS rule for health care workers. The Hill reported earlier this week that a group of 12 state attorneys general filed a lawsuit alleging that the rule is unconstitutional and violates existing federal laws. Participating states include Alabama, Arizona, Georgia, Idaho, Indiana, Louisiana, Mississippi, Montana, Oklahoma, South Carolina, Utah and West Virginia.