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GOP state officials, including in Nebraska, push back on employer vaccine mandate

GOP state officials, including in Nebraska, push back on employer vaccine mandate

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Nebraska's coronavirus cases and hospitalizations were up again last week, indicating that the delta surge that began over the summer has not yet lost its sting.

LITTLE ROCK, Ark. — Republican state officials reacted with swift rebukes Thursday to President Joe Biden's newly detailed mandate for private employers to require workers to be vaccinated against COVID-19, threatening a wave of lawsuits and other actions to thwart a requirement they see as a stark example of government overreach.

At least two conservative groups moved quickly to file lawsuits against the workplace safety mandate, and a growing roster of GOP governors and attorneys general said more lawsuits were on the way. Some Republican-led states have already passed laws or executive orders intended to protect employers that may not want to comply.

"This rule is garbage," South Carolina Attorney General Alan Wilson, a Republican, said Thursday through a spokesperson. "It's unconstitutional and we will fight it."

Lawmakers or governors in states including Kansas, South Dakota and Wyoming have called for special legislative sessions to pass laws banning vaccine mandates. In Nebraska, not enough state lawmakers agreed to a special session to get one on the calendar, but Gov. Pete Ricketts has been pushing them to keep trying.

“Right now, there are Nebraskans who are losing their jobs over vaccine mandates,” his office said in a Facebook post Thursday. “Until more Senators step up, these people who are hurting won’t get the help they need.”

Republican governors or attorneys general in Nebraska, Iowa, Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Louisiana, Missouri, Montana, New Hampshire, Oklahoma and South Dakota said Thursday they would file lawsuits against the mandate soon.

States have been preparing for the requirement since Biden previewed it in September. The Occupational Safety and Health Administration requirements released Thursday call for companies with 100 or more employees to be vaccinated by Jan. 4 or be tested weekly. Failure to comply could result in penalties of nearly $14,000 per violation. 

The Daily Wire, a conservative media company, filed a challenge in federal court on Thursday. So did companies in Michigan and Ohio represented by a conservative advocacy law firm.

Robert Alt, a lawyer representing the Midwest companies suing — manufacturer Phillips Manufacturing & Tower Company and packaging firm Sixarp — said both companies are already facing staffing shortages amid the pandemic. The mandate will make things worse, he said.

"It adds insult to injury and forces them potentially to fire trained employees," Alt said.

The GOP-led states say they are focusing on the role of the federal government in the lawsuits they're preparing.

"While I agree that the vaccine is the tool that will best protect against COVID-19, this federal government approach is unprecedented and will bring about harmful, unintended consequences in the supply chain and the workforce," Indiana Gov. Eric Holcomb said in a statement.

Iowa Gov. Kim Reynolds characterized the mandate as an imposition on personal choice, saying people should be able to make their own health care decisions. She recently signed a bill guaranteeing that people who are fired for refusing a vaccine can qualify for unemployment benefits.

At a press conference, Florida Gov. Ron DeSantis criticized what he called an "executive fiat" for the private sector. 

At least 19 Republican-led states previously sued the Biden administration over a separate mandate requiring vaccines for employees who work for federal contractors. Three more filed similar lawsuits Thursday.

Biden, in a statement Thursday, dismissed the argument from many GOP governors and lawmakers that a mandate for employers will hurt businesses' ability to keep workers on the job.

"There have been no 'mass firings' and worker shortages because of vaccination requirements," he said. "Despite what some predicted and falsely assert, vaccination requirements have broad public support."

The administration has been encouraging widespread vaccinations as the quickest way out of the pandemic.

Democratic governors and attorneys general were relatively quiet after the OSHA rules were announced Thursday. From California, Gov. Gavin Newsom issued a simple Twitter message: "The right move." Another Democrat, North Carolina Attorney General Josh Stein, defended mandates in an emailed statement.

Laura Kelly, the Democratic governor in Republican-dominated Kansas, was trying to walk a fine line on the new workplace rules. She said after a chamber of commerce event Thursday that federal mandates "tend not to work" and that she wanted a "Kansas-focused" way to meet them but did not give details.

All 26 Republican state attorneys general have previously said they would fight the requirements, and most of them signed a letter to Biden saying as much. Key to their objection is whether OSHA has the legal authority to require vaccines or virus testing.

In the letter to Biden, the top state government lawyers argued that the agency can regulate only health risks that are specific to jobs — not ones that are in the world generally. Seema Nanda, the top legal official for the U.S. Department of Labor, which includes OSHA, says established legal precedent allows rules that keep workplaces safe and that those rules pre-empt state laws.

That hasn't stopped state lawmakers and governors from taking a variety of actions aimed at stopping federal mandates.

Texas Gov. Greg Abbott last month issued an executive order prohibiting private companies or any other entity from requiring vaccines.

Arkansas has adopted a law creating a vaccine-mandate exemption for workers who can prove they have COVID antibodies, although a broader measure banning employers from asking about vaccination status failed in the Legislature.

The OSHA rule does include a religious exemption, as well as one for people who work exclusively outdoors or away from others — such as from home.

In Ohio, factory owner Ross McGregor said he will follow the rules as he would any federal workplace mandate, but not because he agrees with them. McGregor, who said he is vaccinated, is opposed to the new requirement, just as he has publicly opposed efforts by Ohio Republican lawmakers to prevent him from mandating the coronavirus vaccine for his workers.

"At the end of the day, every employer, and every employment situation, dictates what is best," said McGregor, a former Republican state lawmaker and owner of axle and brake component manufacturer Pentaflex, where he estimates that about half the 115 or so employees are vaccinated. "Having either a ban on mandates or an imposition of mandates goes against that."

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