By Ray Melick
Alabama Attorney General Steve Marshall has filed a legal challenge to block President Joe Biden’s private-employer vaccine mandate, set to take effect on January 4, 2022.
The petition for review was filed in the Eleventh Circuit in Georgia immediately after the OSHA (Occupational Safety and Health Administration) rule was formally published Thursday morning.
Marshall said he believes that the ruling by OSHA pushing the vaccine mandate back to Jan, 4 from the previous deadline of December 8 raises the question of urgency.
“We all recognize the January 4 pushback to the deadline – the practical realities of it,’’ Marshall said, appearing on the Matt and Val Show on Talk 99.5 FM Friday morning. “But if we’re pushing it back by another month, where is the urgency and where is the emergency? Because if in fact you are trying to quell an emergency situation, why are you giving it another month?
“If I’m a federal judge then I look at the government and say, ‘If this is so compelling, why did you choose that date? Why did you take the other two emergency orders from the President’s executive orders and modify the date when in fact you are arguing this pandemic creates an emergency?’”
OSHA issued binding federal requirements Thursday for COVID-19 vaccines or required weekly testing for employers with 100 or more employees. Under these guidelines, employers have until Jan. 4 to ensure their workers are vaccinated or will be tested weekly for COVID. Employers who don’t adhere to the requirements could face penalties of up to around $14,000 per violation.
Additionally, the Centers of Medicare and Medicaid Services (CMS) announced a requirement that all healthcare workers at facilities participating in Medicare and Medicaid are fully vaccinated, which includes hospitals and long-term care facilities.
“It’s interesting that they (OSHA) are not allowing a testing exception (for healthcare facilities),’’ Marshall said. “They are simply saying everyone has to be vaccinated.”
Marshall said the state will be filing for injunctive relief to immediately stop the order from being enacted until the courts can hear the formal case.
“The critical element is the injunctive relief,’’ Marshall said. “If we don’t get injunctive relief, we can’t provide any relief at all because folks will either have to be compliant or have to have a testing protocol in place.”
Asked why the State of Alabama would file in Georgia rather than within Alabama, Marshall said, “These are labor-intensive cases. … We don’t need 26 cases – there are 26 Republican attorneys general. We want to make sure we maximize the resources and have the people in place to deal with this. “
Marshall is confident there will be at least an initial ruling before the Jan. 4 deadline.
“I feel abundantly confident in our ability to stay the OSHA rule,’’ he said. “Arizona already has a hearing date. You have cases pending in Florida and Georgia, and there will be several states file today, and a case coming in Louisiana. I think you’ll see multiple courts weigh in on this quicker than the Jan. 4 deadline.”
In the Attorney General's statement announcing the action, Marshall said, “Our nation is in the midst of a labor crisis, We can see and feel that here in Alabama. Instead of promoting policies that would encourage individuals to re-enter the work force, this Administration has done nothing but deter them. Vaccine mandates don’t guarantee protection from COVID — they guarantee a labor shortage.”
Marshall joined with his colleagues from Florida and Georgia to challenge the OSHA rule, along with one Alabama-based private plaintiff, Scotch Plywood Company, Inc. The petition for review can be read here. This is a separate and distinct matter from the Attorney General’s lawsuit filed last Friday challenging the federal-contractor vaccination mandate.