COLUMBUS — The U.S. Supreme Court heard oral arguments late last week on a request led by Ohio Attorney General Dave Yost and 26 other attorneys general for an immediate stay of the federal COVID-19 vaccination mandate issued by the Occupational Safety and Health Administration (OSHA).
“COVID vaccines are safe and effective. I urge everyone to get vaccinated and boosted,” Yost said. “But that doesn’t mean OSHA can mandate them.”
The mandate, which was due to take effect Monday, Jan.10, would require all employees of businesses with 100 or more staff members – an estimated 80 million private-sector workers — to be vaccinated or tested weekly — at their own expense — and wear a mask.
Yost and his colleagues assert that OSHA lacks the authority to impose the mandate.
“I am concerned about the spread of virus and urge everyone to protect themselves against COVID-19, but I am equally concerned about this unlawful use of executive power,” Yost said. “The federal government shall not act unlawfully even in these extraordinary times, and we believe the Supreme Court will agree.”
Appearing before the Supreme Court justices, Ohio Solicitor General Benjamin Flowers argued that Congress did not grant OSHA unlimited power to mandate the vaccination without public notice or comment, but only a limited power to create temporary regulations to protect employees from exposure to dangerous workplace substances.
“OSHA is a workplace safety agency, not a general public health agency like the CDC and State public health agencies,” Yost said.
In the vast majority of businesses, Flowers maintained, COVID-19 is no more hazardous, and indeed often less hazardous than outside the workplace. Thus OSHA overstepped its authority.
In their brief seeking the stay, the attorneys general assert: “When the scope of OSHA’s workplace-related authority is properly defined, the vaccine mandate is blatantly illegal. The Mandate acknowledges that the risk of contracting COVID-19 is inherent in human interaction. … Thus, the danger arises not from work, but from routine human interaction. And so it is not work-related.”
Yost, who is vaccinated and boosted, has repeatedly warned the Biden administration of the illegality of its vaccine mandates, filing four lawsuits to stop their implementation. The other lawsuits pertain to mandates for healthcare workers, federal contractors and Head Start instructors.
When the OSHA mandate was issued, Yost immediately challenged it in the Sixth Circuit Court of Appeals in Cincinnati. Another appeals court, based in New Orleans, issued an immediate stay, preventing the mandate from taking effect.
After the many mandate challenges filed nationwide were consolidated in the Sixth Circuit, a panel of judges there lifted the stay on Dec. 17. The attorneys general then sought immediate relief in the U.S. Supreme Court, which announced in late December that it would hear expedited arguments on the OSHA mandate and the healthcare worker mandate on Jan. 7.
“The States share OSHA’s strong desire to combat the spread of a virus that has prematurely ended over three-quarters of a million American lives,” Yost’s brief before the U.S. Supreme Court said. “But federal agencies cannot ignore the law to pursue whatever means they think will most effectively bring about a worthy end.”
Yost was joined in the brief by attorneys general from Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Kansas, Kentucky, Indiana, Iowa, Idaho, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Oklahoma, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming.
At press time, no ruling had been announced.