States Argue Employer Vaccine Mandate Disregards Constitutional RIghts

The three states in the Eleventh Circuit, Georgia, Florida, and Alabama, as well as several private employers, petitioned the Eleventh Circuit in State of Florida et al. v. Occupational Safety and Health Administration, (Case No. 21-13866), to review the federal government’s employer vaccine mandate. The petition alleges that the policy demonstrates a disregard for constitutional rights by the Biden Administration. The President issued vaccine mandates in early September, intended to protect millions of workers from the spread of the coronavirus while working.

The petitioners opposed the Occupational Safety and Health Administration’s emergency temporary standard, or ETS, on COVID-19 vaccinations. Effective since early November, this standard requires employers of 100 or more workers to develop, implement, and enforce a mandatory coronavirus vaccination policy. Employers must require employees to either get vaccinated or undergo regular testing and wear a face mask at work.

“The ETS exceeds the [U.S. Department of Labor’s] statutory authority, fails to comply with the standards for issuing an ETS, and conflicts with the First Amendment and the Religious Freedom Restoration Act,” the states and employers said in their petition.

Georgia Governor Brian Kemp and state Attorney General Chris Carr publicly criticized President Biden, saying that the standard penalized Americans for making legitimate personal choices. Further, Kemp said the vaccine mandate is poorly timed since inflation is rising dramatically, the supply chain is crawling, and businesses are desperately seeking new workers. 

“This unlawful mandate is yet another example of the Biden administration’s complete disregard for the constitutional rights afforded to our state and our citizens,” Chris Carr said in a statement. “The federal government has no authority to force health care decisions on Georgia’s companies and its employees under the guise of workplace safety.”

About 60% of the nation is vaccinated, according to Johns Hopkins University. By comparison, about 45% of Alabama’s population, 50% of Georgia’s residents, and almost 61% of Florida’s population are fully vaccinated against COVID-19.

Department of Labor (DOL) Solicitor of Labor Seema Nanda said that the department is confident in its legal authority to issue the emergency temporary standard and fully prepared to defend any legal challenges to the vaccine mandate.

“The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them,” Nanda said. “This ETS preempts any state or local requirements that ban or limit an employer’s authority to require vaccination, face-covering, or testing.”

“Just a few of the consequences of this mandate include pivotal university research projects being put on hold or abandoned, and locally owned construction companies that help serve our military installations around the state being forced to stop work mid-project,” Kemp commented during a news conference. “These examples literally only scratch the surface, and we will not stand for this outrageous big government power grab.”

Georgia employment attorney Edward D. Buckley does not expect the Eleventh Circuit to strike down OSHA’s emergency temporary standard. He pointed out that it’s difficult to argue that workers nationwide are not endangered by the coronavirus when it has killed more than 750,000 Americans.

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