Pushback Grows Against Biden’s Mandatory Private Employer Vaccination Policy

November 5, 2021

By Terri Jo Neff |

Criticism continues to grow against a sweeping new federal mandate supported by the Biden Administration which requires private employers of 100 or more employees to develop and enforce a mandatory COVID-19 vaccination policy.

The mandate, outlined in a 490-page document, is referred to as an Emergency Temporary Standard (ETS). It establishes a Jan. 4, 2022 deadline for compliance, and requires employees of those companies to be vaccinated or be forced to wear a face covering at work while undergoing regular COVID-19 testing at the employee’s expense.

The Industrial Commission of Arizona (ICA) and the Arizona Attorney General’s Office are pushing back on the mandate which is estimated to cover more than 84 million employees, or about two-thirds of America’s private-sector workforce. OSHA estimates that about 23 million Americans will choose to undergo the vaccination to preserve their jobs.

On Thursday, the ICA issued a statement that Arizona businesses are not bound by OSHA’s mandate unless the commissioners vote to formally adopt a similar policy.  Arizona is one of 22 states previously granted federal approval to operate a state plan to address issues typically under the purview of OSHA.

Then on Friday morning, Arizona was one of 11 state plaintiffs in a federal lawsuit filed in the U.S. Eighth Circuit Court of Appeals against President Joe Biden and OSHA to stop the COVID-19 ETS. The petition contends the vaccination mandate “is unconstitutional, unlawful, and unwise” and an attempt to infringe on the States’ powers expressly reserved by the Tenth Amendment.

In addition to Arizona, the attorneys general from Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming are plaintiffs.

Also on Friday, State Rep. Steve Kaiser criticized the White House’s support of the workplace vaccine mandate, calling it “an onerous and overreaching policy that will hurt businesses and the people who they employ.”

Kaiser, a Republican who represents LD15 covering north Phoenix and Cave Creek, owns Junk King, a Phoenix area franchise providing removal and hauling services.

“As a small business owner, it’s clear to me that Biden’s policy would force employees to choose between being vaccinated against their will, completing weekly COVID-19 testing (at their own expense), or losing their jobs.  That’s wrong,” he said. “It’s more critical than ever that Arizona defend businesses and their employees and ensure their ability to continue making decisions for themselves – instead of liberal politicians in Washington.”

According to Kaiser, state officials are doing the right thing by trying to protect Arizonans who would be harmed by implementation of what he calls a “terrible” mandate. He supports ICA’s position that Arizona -and not OSHA- has had the exclusive responsibility for nearly 50 years for developing and enforcing any occupational safety and health standards within the state.

“Under Arizona’s long-approved state-plan procedures, the Industrial Commission has exclusive authority to decide if, when, and to what extent the State of Arizona will adopt the OSHA vaccination ETS,” the ICA statement reads. “Arizona has a 47-year track record of protecting the safety and health of Arizona’s workers and remains fully committed to this mission.”

The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. It also requires employers to provide employees with a variety of information and literature about COVID-19 and to provide an employee “reasonable time and paid sick leave to recover from side effects experienced following each dose.” 

In addition, employers are now mandated to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

For now, OSHA officials are less confident that smaller employers can implement a mandatory vaccination policy “without undue disruption.” But it appears those smaller businesses could be facing a similar mandate in the future. 

“OSHA needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination,” it says. 

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