TOPEKA – (January 20, 2022) – Kansas Attorney General Derek Schmidt is calling on the federal Occupation Safety and Health Administration to withdraw its proposed rule requiring private companies with more than 100 employees to mandate COVID-19 vaccinations or frequent employee testing.
Schmidt yesterday joined 26 other state attorneys general in commenting on OSHA’s proposed regulation. The attorneys general filed the formal statement on the heels of the U.S. Supreme Court’s 6-3 ruling in response to a legal challenge brought by Schmidt and others against the Biden administration. Despite the fact the Court ruled OSHA likely exceeded its legal authority to implement an Emergency Temporary Standard and preliminarily blocked it while litigation proceeds, OSHA has indicated that it will not formally withdraw the proposed ETS. The OSHA ETS would require tens of millions of private employees to be vaccinated or undergo continual testing as a condition of employment, with the cost of testing typically borne by the employee.
In the letter, Schmidt and the coalition maintain that the current OSHA mandate is unlawful because the agency does not have the authority to issue a broad vaccine mandate for larger employers.
“[T]he [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 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.”
Schmidt and the coalition described the detrimental economic effect the OSHA mandate would have on employers, in particular vulnerable small businesses that have struggled to remain afloat during the pandemic.
The letter was sent to OSHA as part of the federal government’s formal regulatory comment process. It is the latest step taken by Schmidt in response to the Biden administration’s one-size-fits all approach to federal mandates related to the pandemic. Schmidt also challenged the administration’s mandate for healthcare workers, but the justices in a 5-4 ruling allowed that mandate to go into effect while the lawsuit proceeds. Two other mandates, affecting federal contractors and Head Start childcare programs, have also been challenged by Schmidt and are currently blocked by court orders.
A copy of the comment letter filed with OSHA is available at https://bit.ly/3fDhi3c.