Vaccine mandate legality debated
Order draws bipartisan fire; AG to file challenge
Oklahoma leaders from both sides of the political aisle plunged late Thursday and Friday into the firestorm ignited by President Joe Biden’s vaccine/testing mandate that could impact nearly 100 million workers across the nation and potentially disrupt some businesses’ abilities to operate.
The state is one of several pursuing legal action against the president’s mandate.
Oklahoma Attorney General John O’Connor is working to craft a legal challenge to expected emergency rulemaking from the Occupational Safety and Health Administration to require shots or mandatory tests.
“My office will vigorously oppose any attempt by the federal government to mandate vaccines,” O’Connor said late Thursday. “We respect the right of Oklahoma businesses and individuals to make healthcare decisions for themselves and their families. We are preparing litigation to stand up for our rights and defend the rule of law against the overreach of the federal government.”
Biden and other administration officials expect OSHA’s rule would require companies with 100 workers or more to force their employees either to take vaccines or to submit themselves to mandatory weekly COVID-19 tests to keep their jobs. If they don’t, businesses could face fines.
Biden also signed executive orders Thursday requiring federal employees and employees working for federal contractors to be vaccinated, as well as workers at health care providers that receive Medicare and Medicaid funding and teachers and staff members at federal-funded programs such as Head Start and schools run by the Department of Defense and Bureau of Indian Education.
An attorney who specializes in labor and employment practices law said Friday OSHA can enact an emergency rule under its mandate to protect the safety of workers and the general public.
But Adam Childers, the co-chair of Crowe & Dunlevy’s Labor & Employment Practice Group, also said he is certain the issue will land before the U.S. Supreme Court to be argued, soon.
Those requirements could cost businesses time and money.
“There absolutely will be a bunch of legal challenges, with Oklahoma being among the many states involved who question whether or not it exceeds the boundaries of what OSHA is allowed to do,” Childers said. “It feels like some
thing that is headed for the nine (justices) to decide. I will be watching eagerly to see how it all plays out.”
U.S. Rep. Stephanie Bice, R-Oklahoma City, said President Biden’s actions are unconstitutional and reverse previous promises his administration made not to require vaccines.
“The federal government must focus its efforts on rebuilding the economy, not continuing to encumber the private sector with commands and red tape,” Bice said.
Oklahoma House Speaker Charles McCall, R-Atoka, said late Thursday the legislature foresaw Biden’s actions this week when it approved a state law authorizing O’Connor’s office to work with other state agencies to battle against unconstitutional federal acts.
“I applaud the attorney general for utilizing the tools the Legislature provided to defend Oklahoma’s rights as a state,” McCall said.
Senate President Pro Tempore Greg Treat, R-Oklahoma City, called Biden’s mandate “a gross overreach.”
“The federal government should not interfere in the decision-making of a private business on the steps it takes to protect the health and safety of its employees and customers,” he said.
Even the top Democrat in Oklahoma’s House of Representatives on Friday agreed that no one likes Biden’s vaccine requirement.
But state Rep. Emily Virgin, D-Norman, pulled no punches in placing the need for Biden to take the extraordinary step at the feet of her Republican colleagues, noting their only action so far this year was to approve a measure that sought to strip school boards of their authority to set new masking requirements.
An Oklahoma County district judge blocked the law from taking effect last week because it only targeted public schools, leaving private operations free to set whatever policy they believe appropriate. Stitt’s administration has appealed the judge’s ruling to Oklahoma’s Supreme Court.
“I understand that nobody likes a mandate, but if Republicans want to find someone to blame for the president’s actions, they should look in the mirror,” Virgin said. “Last November, when 1,400 Oklahomans had died of COVID, our caucus asked Gov. Stitt what his plan was to keep that number from getting to 2,000. Today, 10 months later, more than 8,000 Oklahomans have died, and we are still waiting on a plan.”
Some employers fear mandates in the workplace will make it harder to find workers. For example, this could slow work on roads and bridges, said Bobby Stem, executive director of the Association of Oklahoma General Contractors.
“If they have chosen not to get vaccinated, then us telling them what they have to do is going to cause us to lose some of these workers. It already is very hard work, and work will slow down if we lose too many,” he said.
Stem said most road and bridge construction workers have avoided getting sick, mainly because they work outside.
“Mandating something like that is going to force some of our workers into other jobs, or home.”