McMaster calls federal employer vaccine mandate illegal overreach

COLUMBIA, S.C. — 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.

South Carolina Gov. Henry McMaster on Thursday issued an executive order keeping his cabinet agencies from enforcing a federal mandate requiring companies with more than 100 employees to either have their workers vaccinated or tested for COVID-19 weekly.

Under the new order, all state agencies will be required to report to McMaster if the federal government asks whether their employees are vaccinated, the Republican governor said at a Thursday news conference.

Earlier Thursday, the Occupational Safety and Health Administration announced the rules for the federal vaccine mandate first announced in September by Democratic President Joe Biden.

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Companies with more than 100 employees that fail to have all their employees vaccinated or get them tested weekly for COVID-19 and wear a mask could face stiff financial penalties.

“We have been stunned at the overreach of the Biden administration. Stunned is the word,” McMaster said.

South Carolina joined a lawsuit by Georgia and seven other states fighting against the requirements that federal contractors mandate vaccines for its workers.

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“People have reasons to take the vaccine and reasons not to,” said McMaster, who is vaccinated and has encouraged other people to at least talk to medical professionals and others and make an informed decision.

The governor said the state is exploring other legal options.

“We will fight every one of them with every legal tool we have,” McMaster said.

>> Read the full guidance released by OSHA

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 as soon as Friday. Some Republican-led states had 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.”

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. Federal officials also left open the possibility of expanding the mandate to smaller employers.

The White House said the administration has the authority to take actions designed to protect workers and expects the rule to withstand legal challenges.

Republican governors or attorneys general in Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, New Hampshire, Oklahoma and South Dakota said Thursday they would file lawsuits against the mandate. 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,” said Alt, president and CEO of The Buckeye Institute, a conservative advocacy group.

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.

At a news conference, Florida Gov. Ron DeSantis criticized what he called an “executive fiat” for the private sector. 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 least 19 Republican-led states previously sued the Biden administration over a separate mandate requiring vaccines for employees who work for federal contractors. Several 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. A White House spokeswoman, Karine Jean-Pierre, said during a briefing Thursday that the mandate was intended to halt the spread of a disease that has claimed more than 750,000 lives in the U.S.

“So you know, the question that we always have and that we ask to the Republicans is, why are they getting in the way?” Jean-Pierre said. “Why are they getting in the way of trying to protect and save lives? That’s all we’re trying to do.”

Challenges to the workplace mandate from Republicans and conservative groups are expected to be broad-based and quick, reflecting yet another aspect of the COVID-19 response — from mask requirements to social-distancing guidelines — that has fallen into a partisan divide. Democratic governors and attorneys general were relatively quiet after the OSHA rules were announced on 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 to The Associated Press.

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 for taking a variety of actions aimed at undercutting federal mandates.

Texas Gov. Greg Abbott last month issued an executive order prohibiting private companies or any other entity from requiring vaccines. An Ohio lawmaker has proposed a bill barring schools and colleges from expelling students who refuse vaccines and preventing employers from firing workers who do so.

Arkansas has adopted a law creating a vaccine-mandate exemption for workers who can prove they have COVID-19 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.

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

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.”

(Watch the video below: Federal vaccine mandate for businesses, health care workers takes effect Jan. 4)