HELENA — Montana and several other states are suing to block a federal emergency rule mandating COVID-19 vaccinations or regular testing for private employers with 100 or more employees.
Republican attorneys general for the 11 states filed the petition for review with the 8th Circuit Court of Appeals on Friday. President Joe Biden and the heads of the Occupational Safety and Health Administration (OSHA) and the U.S. Department of Labor are named as defendants.
In a press release announcing the lawsuit Friday, Montana Attorney General Austin Knudsen called the new federal rule “an egregious overreach.”
“If a president can unilaterally force people to submit to a medical procedure they don’t want, then there’s seemingly no limit to the federal government’s control over our lives,” Knudsen said in part of a longer statement, adding that the mandate “infringes on the rights of our state, individuals, and businesses.”
Biden’s strategy to expand vaccinations comes as COVID-19 continues to hammer the country, killing an average of more than 1,000 Americans every day. According to recent data from the Centers for Disease Control and Prevention, unvaccinated people are dying from the disease at 12 times the rate of those who have been vaccinated.
In Montana, where roughly half of the total population has been vaccinated against the virus, the federal strategy is meeting a wall of resistance supported by Republican elected officials, including Gov. Greg Gianforte. The first-term governor has for months toed the line of encouraging vaccinations while opposing government mandates and aggressive messaging from politicians, claiming the latter strategy is ineffective. Gianforte on Friday called the OSHA rule “heavy-handed.”
Federal officials insist the change to workplace safety rules is reasonable.
“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” U.S. Labor Secretary Marty Walsh said in a Thursday news release about the emergency OSHA rule. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19.”
The rule released Thursday does not threaten noncompliant employees with termination, but rather implements new requirements for employers in a stated effort to “protect unvaccinated workers from the risk of contracting COVID-19 at work.” The rule states that private businesses have until Jan. 4 to require vaccines for their employees or implement weekly testing and masking for unvaccinated employees. An individual infraction can cost employers up to $14,000.
The rule also requires employers to maintain an updated record of the vaccination status of individual employees and “obtain acceptable proof of vaccination” from those who have been inoculated. Additionally, employers must have a plan for reporting positive COVID-19 tests and temporarily removing those employees from worksites where they could infect others, regardless of the person’s vaccination status.
According to a Montana Free Press analysis of 2019 U.S. census data, roughly 100,000 Montanans on the payrolls of 411 large employers across the state could be impacted by the OSHA rule. Employers in health care, social assistance and retail make up the bulk of that category.
The Friday lawsuit disputes the labor department’s characterization of the rule as part of an emergency response, claiming that it was drafted to fit a policy announced by Biden in September. The lawsuit also says the OSHA rule was “shoe-horned” into workplace safety statutes that were “never intended to federalize public-health policy.”
The chief legal officer for the labor department rebutted that statement Friday, writing that the agency is confident in its legal authority to issue new safety standards in an effort to protect workers subjected to “grave danger.”
“In particular, this [emergency rule] preempts any state or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing. The new emergency temporary standard is well within OSHA’s authority under the law and is consistent with OSHA’s requirements to protect the health and safety of workers,” Solicitor of Labor Seema Nanda said in an emailed statement. “We are fully prepared to defend this standard in court.”
This week’s lawsuit follows another legal clash over the federal vaccine requirement that applies to future or renewed federal contractors. That case, filed in federal court for the eastern district of Missouri, was brought by many of the same states suing against the OSHA rule, including Montana.
Knudsen is also defending Montana’s recently passed House Bill 702, which broadly prohibits discrimination or disparate treatment based on vaccination status. That policy is being challenged by private employers, the Montana Medical Association and the Montana Nurses Association in lawsuits brought in state and federal court.
This story was updated Nov. 5, 2021, to include comment from the U.S. Department of Labor.
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