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AG Derek Schmidt sues Biden administration over OSHA vaccine mandate for private employers

Release Date: Nov 05, 2021

TOPEKA – (November 5, 2021) – Kansas Attorney General Derek Schmidt today filed a federal lawsuit challenging the new federal vaccine mandate for private employers with more than 100 employees, which was promulgated today by the Occupational Safety and Health Administration. The new mandate, issued as an “emergency temporary standard,” requires that employees either be vaccinated or receive frequent testing for COVID-19 and would apply to all private-sector employers with 100 or more employees, affecting thousands of Kansas workers and businesses.

Schmidt joined six other state attorneys general in filing a petition with the U.S. Court of Appeals for the 6th Circuit, following through on his previous warnings about the doubtful legality of using OSHA emergency powers to mandate employee vaccinations or testing. Today’s filing asks the court to review the legality of the new mandate, arguing that OSHA lacks the statutory and constitutional authority to issue it. The attorneys general also plan to file a motion asking the court to stay the mandate pending the outcome of the case.

“Nothing in federal law gives OSHA this kind of far-reaching authority,” Schmidt said. “Businesses that do not comply would be subject to steep fines. And to make matters worse, state and federal governments have just announced they will stop paying the cost of testing for businesses, shifting that cost onto businesses themselves. The net effect of this overreaching federal mandate is to discourage private businesses from employ unvaccinated workers by making it more costly, once again threatening the livelihood of many Kansas workers and businesses and promising more disruptions to supply chains nationwide.”

The power to issue emergency temporary standards was delegated to OSHA by Congress for the express purpose of protecting employees from grave dangers posed by exposure to substances or physically harmful toxins encountered at work. The attorneys general argue that authority does not extend to risks that are equally prevalent at work and in society at large. They point out that as recently as last year OSHA agreed with their assessment, noting in the lawsuit that just last year “OSHA refused to issue a nationwide emergency temporary standard for COVID-19 because ‘COVID-19 is a community-wide hazard that is not unique to the workplace.’”

The coalition also points out that each state “has enacted its own laws and policies — or declined to issue certain mandates — in a way that balances the need for public health with the right of its citizens.” OSHA’s nationwide mandate takes away that power from the states and adopts a one-size-fits-all national vaccination requirement, which is beyond the federal government’s authority.

“As I have said many times, I encourage Kansans to be vaccinated, but that personal health care decision should be made by each individual and not mandated by the federal government,” Schmidt said. “At a time when Kansas employers and employees are desperately seeking a return to normalcy, this mandate would further disrupt and impede their efforts in private workplaces all across Kansas.”

This case is the second filed by Schmidt challenging the federal government’s recent attempts to mandate vaccination. Last week, Schmidt joined six other attorneys general in filing a lawsuit asking a federal court to declare illegal a different federal vaccination mandate – one applying to businesses and universities that participate in federal contracts – and to block its implementation. That suit is pending in the U.S. District Court for the Southern District of Georgia, Augusta Division.

A copy of the lawsuit filed today is available at

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