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The attorneys general from 27 states sent a letter to the Occupational Safety and Health Administration on Wednesday, asking the agency to withdraw its COVID-19 vaccination-and-testing mandate for large private employers. The coalition was led by Kentucky Attorney General Daniel Cameron.
Although the U.S. Supreme Court last week temporarily halted OSHA’s vaccine mandate for companies with 100 or more employees, the agency has not withdrawn the emergency temporary standard, which it says could affect 84 million workers across the country.
The High Court, in the majority opinion, stated that although “Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.” Requiring vaccination of millions of American workers “simply because they work for employers with more than 100 employees” falls into the latter category, the justices wrote in the majority opinion.
In Wednesday’s letter, the coalition of attorneys general maintained that the OSHA mandate, as currently written, is unlawful because the agency does not have the authority to issue a broad vaccine mandate for larger employers. “The [Occupational Safety and Health] Act was designed to address dangers employees face at work because of their work — not dangers that are no more prevalent at work than in society generally,” the attorneys general wrote. “The United States Supreme Court agrees and held that the ETS — or any similar permanent standard for that matter — fails to address a unique workplace hazard and is therefore unlawful.”
The letter was sent to OSHA as part of the federal government’s formal regulatory comment process. Cameron, from Kentucky, was joined by attorneys general from Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Virginia, Utah, West Virginia and Wyoming in signing it.
“We appreciate the opportunity to provide input on this ETS and the possible consideration of a similar permanent standard,” the attorneys general wrote, adding that the standard should be withdrawn “and OSHA should abandon any further efforts to establish a similar permanent standard.”
After the Supreme Court ruling, Labor Secretary Marty Walsh said that OSHA “will be evaluating all options to ensure workers are protected from this deadly virus,” and the Labor Department has indicated that it plans to “vigorously enforce” existing rules, regulations and policies, as well as issue new ones to ensure that employers protect their workers during the pandemic.
Several labor organizations and unions representing healthcare workers filed suit earlier this month in the U.S. Court of Appeals for the District of Columbia, urging the court to order OSHA to issue a permanent standard that requires employers to protect healthcare workers against COVID-19.