February 25, 2024

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AG Schmidt to challenge federal vaccine mandate

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The Biden administration is about to promulgate its latest COVID-19 vaccine mandate, using the Occupational Health and Safety Administration to require vaccination at any company with a minimum of 100 workers.

Kansas Attorney General Derek Schmidt has already vowed to fight it.

Kansas Attorney General Derek Schmidt

“The Biden administration is about to publish yet another federal vaccine mandate, this one using OSHA to target thousands of Kansas private businesses and their workers,” Schmidt said in a release on Facebook. “As I said weeks ago, we have been waiting for publication of this action that the President announced Sept. 9. The text is now available, will be formally published tomorrow, we are reviewing it, and we will challenge it in court soon.”

Called an “Emergency Temporary Standard,” the rule will require that “covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”

NBC News reports that the rules would require any employer with 100 or more employees to require vaccination or regular testing by Jan. 4, 2022, and masks would be required for unvaccinated employees no later than Dec. 5 of this year.

OSHA will also be conducting on-site compliance inspections with penalties ranging from $13,653 up to $136,532.

While it is not illegal for individual employers to require vaccination, it is an open question whether or not the OSHA can use regulatory authority — and the massive power of the federal government — to coerce vaccination.

Federal contractor vaccination mandate already under challenge

Kansas is among 19 states already suing the administration over a previous requirement that any company doing business with the federal government require vaccination.

According to the Associated Press, attorneys general from Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming signed on to one lawsuit, which was filed in a federal district court in Missouri. Another group of states including Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia filed a lawsuit in federal district court in Georgia.

Texas is suing individually.

An analysis by Bloomberg News last month notes that the overall constitutionality of vaccine mandates was decided more than 100 years ago.

“The U.S. Supreme Court blessed the constitutionality of government vaccine mandates with its 1905 ruling in Jacobson v. Massachusetts,” Bloomberg noted.

However, Bloomberg also notes that challenges to the OSHA rule will likely not challenge the legality of the mandate, but rather the way it is being done, writing that the dispute “will likely turn on whether the Occupational Safety and Health Administration has the power to issue a regulation calling for workplace mandates, not the legality of requiring workers to get the shot.”

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