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By Brandon Moseley

In response to public inquiries, Alabama Attorney General Steve Marshall (R) addressed vaccine mandates and the State of Alabama’s response.

On September 9, 2021, President Joe Biden (D) announced plans to mandate the COVID-19 vaccination for large segments of the workforce. The first mandate applies to federal employees and contractors. Biden also ordered that all employees of healthcare facilities that receive Medicare or Medicaid funding be mandated to receive the COVID-19 vaccine. The second mandate required that private employers, with 100 or more employees, mandate the vaccine or the employer would be fined by the Occupational Safety and Health Administration (OSHA).

The federal-employee mandate purportedly went into effect, via executive order, on September 9. In late September, the Biden administration announced a deadline of December 8 for federal contractors to comply with the President’s orders. Attorney General Steve Marshall is presently examining legal options for challenging this order.

The Biden administration is expected to attempt to implement the private-employer mandate via an emergency OSHA rule. At this time, no such rule has been formally proposed. Federal law requires OSHA to give notice of a proposed rule change. The Biden administration still has not given any indication of when that will occur, though it has said that there will be “more detail ... in the coming weeks.”

Marshall is preparing to challenge this regulation as soon as it is published.

At the state level, in May the state legislature passed and the Governor signed SB267 banning vaccine passports, now officially Act 2021-493, which dictates that no government, school, or business in Alabama may demand that a constituent, student, or customer be vaccinated for COVID-19 or show proof of his or her vaccination for COVID-19.

Given the recent escalation of COVID-19 vaccination mandates, Marshall is recommending that the Alabama Legislature consider two updates to state law as soon as practicable:

“Vaccine mandates are having an undeniably negative impact on the freedom of individuals, on Alabama’s workforce, and on our free-market system,” Marshall said. “The people of Alabama need to know that their government is not ignoring their calls for help. Rest assured, my office is working tirelessly to deal with these heavy-handed mandates and to ensure that our state is well-positioned to succeed in this fight.”

The Alabama legislature will not meet in regular session until January, but the legislature could address Marshall’s concerns in the special session on redistricting that will be held within weeks.

The Biden administration argues that the Supremacy Clause of the U.S. Constitution means that any federal mandate would pre-empt any state law to the contrary, to go to court and win, the Attorney General's office would have to prove that the order itself was in conflict with existing federal law or the Constitution itself.

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