WASHINGTON, D.C. – Today, America First Legal submitted comments with the Occupational Safety and Health Administration (OSHA) regarding the Biden Administration’s COVID-19 vaccine mandate for private employers. 

That mandate–which came in the form of an Emergency Temporary Standard (ETS)–was stayed by the Supreme Court by a vote of 6-3 last week. As a result, the ETS cannot be enforced until the Sixth Circuit renders a final judgment on its validity and the Supreme Court either denies a petition for certiorari by NFIB and the state coalition, or grants a petition and renders a final judgment itself. But OSHA has not withdrawn its ETS, and is continuing with the formal rulemaking process. 

In the comments, AFL argues that OSHA should not adopt the ETS that requires private businesses to adopt the vaccine-or-test policy the Biden Administration imposed. The ETS—one of only ten ever issued by OSHA—requires all employers with 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy.” Per the Administration’s rule, employers may also adopt an alternative policy of “regular COVID-19 testing and wear[ing] a face covering at work in lieu of vaccination.”

Like the eviction moratorium struck down last year, OSHA’s emergency mandate exceeds the authority clearly traceable to a democratically accountable act by Congress. It would be better for OSHA to abandon its vaccination mandate voluntarily rather than being forced to that result, as CDC was.  

OSHA can proceed with its  plans to drastically expand federal power and face certain defeat in court, or it can  abandon its efforts and return its focus to the core functions actually authorized by  Congress. America First Legal will be watching—as will the broader coalition that  has brought the ETS to a standstill—and we will not cease in our efforts to stop your  lawless expansion of federal power. For the reasons above, we strongly oppose adopting this interim final rule and OSHA should withdraw it.

America First Legal will not stop fighting the Biden Administration’s clear executive overreach in this case, nor will we allow the Administration to continue to steamroll over the separation of powers outlined in the United States Constitution. 

Statement From America First Vice President and General Counsel Gene Hamilton:

Just last week, a majority of the Supreme Court issued a stay of OSHA’s COVID vaccine mandate. And while that litigation is not over, it is astounding that OSHA is pressing forward with its vaccine mandate despite a resounding interim defeat at the Supreme Court. The importance of that case and this rule cannot be overstated: if OSHA has the authority to impose a vaccine requirement on all private employers with 100 or more employees under the guise of workplace safety, there are no limits to its power,” Gene Hamilton said. 

Read the comments here.

To schedule an engagement with America First Legal, please email [email protected].

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