Several legal fights related to COVID-19 continue to be closely watched by Arizonans, including President Joe Biden’s various vaccination mandates.
One mandates issued by the Occupational Safety and Health Administration (OSHA) requires all companies with 100 or more employees to implement a vaccination policy that is complied with by Jan. 4. Any employee who does not provide proof of vaccination will be forced to pay for and undergo weekly testing or be fired, according to OSHA.
More than 80 million Americans are believed to fall under the authority of OSHA’s mandate which the Fifth Circuit U.S. Court of Appeals took issue with on Nov. 6 when it put the mandate on hold while the judges conducted further review. Despite that court order, the Biden Administration advised companies to not stop their vaccination plans.
“People should not wait,” White House Deputy Press Secretary Karine Jean-Pierre said Nov. 8. “They should continue to move forward and make sure they’re getting their workplace vaccinated.”
But on Nov. 13, the Fifth Circuit affirmed its earlier order and directed OSHA to “take no steps to implement or enforce the Mandate until further court order.” The court’s second order suggested that further litigation will result in the mandate being declared unconstitutional.
“We next consider the necessity of the Mandate. The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains—the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.” – EXCERPT FROM 5TH CIRCUIT RULING, PAGE 13
The other COVID-19 mandate being litigated involves Biden’s executive order from September requiring all federal contractors and federally contracted employees to provide proof of vaccination by Dec. 8.
At least four federal lawsuits have been filed challenging the federal contractor mandate, including one brought by 10 state attorneys general who argue it “will have deleterious effects on economy and inefficiency by causing the large-scale resignations of unvaccinated employees of federal contractors.”
One Arizona senator is very vocal in his support of the legal challenges to the President’s federal contractor mandate.
Sen. David Livingston (R-LD22) serves as Chairman of the Senate Finance Committee and is a member of the Appropriations Committee and Commerce Committee. He says the only way to get Biden to retract the mandate is for states and employers to work together.
“This mandate only makes matters worse by forcing unvaccinated workers to resign. It is pure government overreach and needs to be stopped!” tweeted Livingston, who is running for Arizona Treasurer.
Meanwhile, Arizona Attorney General Mark Brnovich’s lawsuit against the federal contractor mandate hit a speed bump last week when U.S. District Court Judge Michael Liburdi refused to issue a nationwide preliminary injunction to stop its implementation. The Nov. 10 ruling allows the attorney general to file an amended complaint by Nov. 19 in an attempt to keep the case alive.
Brnovich sent a letter to Gov. Doug Ducey on Nov. 12 seeking immediate help identifying all state contracts with federal agencies which would be impacted by Biden’s contractor mandate. The letter also asks Ducey to instruct the Arizona Department of Health Services to issue an emergency rule preempting political subdivisions from mandating COVID-19 vaccines for public employees.
In addition, Brnovich is asking the Governor to call a special session of the Arizona Legislature in an attempt to resurrect several COVID-19 related laws which the Arizona Supreme Court recently ruled unconstitutional on procedural grounds.
There was also news last week about the two nursing students who obtained a federal court requiring the Maricopa County Community College District (MCCCD) to accommodate the women’s religious objections to the COVID-19 vaccine.
On Nov. 12, the students learned that MCCCD would not appeal the court order. Instead, district officials announced that arrangements have been finalized to ensure the students receive the critical care training needed to graduate from the nursing program on time in December.
The fact MCCCD officials had the authority to make those arrangements with the students weeks ago and thus avoid negative publicity and expensive legal action is not lost on one member of the MCCCD governing board.
“A week after a federal judge ruled that Maricopa Community Colleges nursing program needed to make accommodations for nursing students they did just that,” Kathleen Winn told the Arizona Daily Independent. “Unfortunately, when asked to do so back in August they refused. The exorbitant cost of this litigation and the threat of failing students was their approach.”
Winn added that she applauds the students who stood up for their rights and the rights of others.
“The overreach and bullying of students must end in our educational systems,” she said.
Fifth Circuit 2nd ruling 21-60845-CV0