Arizona challenges federal government vaccination or testing mandate | Parker Poe Adams & Bernstein LLP
On September 9, President Joe Biden announced that his administration would implement a mandatory COVID-19 vaccination or testing policy for all private employers in the United States with 100 or more employees. The mandate will be implemented through a temporary emergency standard issued by the Federal Occupational Safety and Health Administration with the aim of protecting the safety of workers. Although private sector leaders have received few details on what to expect in terms of logistics and implementation, lawsuits challenging the legality of this proposed rule have already started.
On September 14, Arizona Attorney General Mark Brnovich was the first to file a lawsuit challenging the legality of the rule proposed by the Biden administration. The legal route Brnovich took, however, was not to challenge the what or how of the rule, but rather the who. Brnovich argued that this proposed rule would favor “foreigners who entered the United States illegally over actual US citizens.” . . [and shows] disregard for the real rights of American citizens. Brnovich chose to use the 14th Amendment’s equal protection clause, which generally prohibits different treatment of people in the United States based on enduring characteristics such as race, nationality, and gender.
Brnovich added that although “the precise outlines of the federal vaccination mandates are not yet clear,” because “unauthorized aliens will not be subject to any vaccination requirements … while approximately one hundred million U.S. citizens are on the will, “the rule violates the equal protection clause of the United States Constitution.
This specific challenge is not likely to be successful for two reasons. First, the lawsuit does not appear to be mature, a legal concept meaning that courts should not rule on issues until there is an actual legal violation. In this case, the temporary emergency norm was not written down, let alone applied. Second, President Biden focuses on employers, not employees (i.e. the rule is likely to require all employees of employers who employ 100 or more employees to undergo weekly tests or receive the vaccine. , not just those of a certain race or citizenship).
Either way, this lawsuit likely serves as a harbinger of multiple legal challenges that will follow when the standard is released. These challenges could delay or even prevent the adoption of any possible mandatory COVID-19 requirements. Employers should continue to monitor OSHA’s progress on the standard as well as legal responses as part of their compliance planning.