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Morrisey joins with six states to ask federal court to halt OSHA vaccine mandate

MORGANTOWN – Attorney General Patrick Morrisey announced Friday he has joined with six other states to petition a federal appeals court to stay and to review the OSHA vaccine mandate rule issued Thursday.

The rule applies to employers with 100 or more employees and has a Jan. 4 deadline – the same as prior mandates the Biden administration issued for health care workers and federal contractors.

The OSHA rule requires employees to either get vaccinated or to get tested once a week and wear a mask on the job. Employers must provide paid time off to get the shot and to recover from any side effects.

“OSHA’s vaccination mandate represents a real threat to individual liberty,” Morrisey said in a release about the filing. “As we have seen throughout the country, it is also a public policy disaster that displaces vulnerable workers and exacerbates a nationwide shortage of frontline workers, with severe consequences for all Americans.”

In the petition, the coalition challenges the legality of the Biden administration’s emergency temporary standard and asks the 6th Circuit Court of Appeals, based in Cincinnati, Ohio, to review the validity of the mandate, arguing that OSHA lacks statutory and constitutional authority to issue it.

The states argue that Congress delegated the power to issue emergency temporary standards was delegated to OSHA for the express purpose of protecting employees from grave dangers posed by exposure to substances or physically harmful toxins encountered at work. That authority, however, does not extend to risks that are equally prevalent at work and in society at large.

They note that last year, OSHA refused to issue a nationwide emergency temporary standard for COVID-19.

The coalition also contends that the vaccine mandate prohibits sovereign states from enacting and enforcing their own policies in response to the COVID-19 pandemic. “Each Petitioner State has enacted its own laws and policies—or declined to issue certain mandates—in a way that balances the need for public health with the right of its citizens.”

OSHA’s mandate takes away that power from the states and prevents policymakers from enacting policies that are beneficial to their respective states, they argue.

They ask the court to halt the vaccine mandate until it rules on the legitimacy of the rule.

Morrisey said President Biden and OSHA relied on a statute that has been used just seven times since 1971 and just once since 1983. The most recent instance, earlier this summer, is being challenged, while five of the previous six uses were overturned to some degree.

Kentucky is the lead state in the suit; other states are Idaho, Kansas, Ohio, Oklahoma and Tennessee.

Gov. Jim Justice addressed the OSHA rule and the filing during his Friday COVID briefing.

“While I adamantly disagree with what’s going on with the Biden administration with what’s going on in regard to this, it is a federal requirement.” It will trump HB 335, the vaccine exemption bill passed in October that will take effect Jan. 18.

He doesn’t believe the OSHA rule will actually take effect on Jan. 4.

He mentioned the seven-state suit West Virginia has joined. “I think there are umpteen, umpteen lawsuits all over the place challenging this. … I cannot imagine that we are continuing to plow down these paths that are absolutely infringing on every one of our good people.”

TWEET David Beard @dbeardtdp EMAIL