Legal battle likely awaits Biden vaccine-or-testing mandate. Utah's AG is ready to sue

Salt Lake City is pictured at sunset on April 17, 2020.
As businesses in Utah and across the country await critical details
on President Joe Biden’s vaccine mandate plan, potential legal
challenges are under construction by some state attorneys general
eager to block, or avoid, the new rules.

Salt Lake City is pictured at sunset on April 17, 2020. As businesses in Utah and across the country await critical details on President Joe Biden’s vaccine mandate plan, potential legal challenges are under construction by some state attorneys general eager to block, or avoid, the new rules. (Spenser Heaps, Deseret News)



Estimated read time: 5-6 minutes

SALT LAKE CITY — As businesses in Utah and across the country await critical details on President Joe Biden's vaccine mandate plan, potential legal challenges are under construction by some state attorneys general eager to block, or avoid, the new rules.

And while polling data reflects a majority of U.S. workers say they're supportive of the mandates, business owners are stuck at an impasse with only a general idea of how, and to whom, the rules may apply.

The mandates, announced earlier this month, cover about 100 million workers or two-thirds of the U.S. workforce, administration officials said, with about 80 million of those employed by private sector businesses.

Under the plan, companies with 100 or more employees would have to require their workers to be vaccinated or undergo at least weekly COVID-19 testing. Failure to comply with the rules could lead to penalties up to $14,000 per violation.

Derek Miller, president and CEO of the Salt Lake
Chamber, looks around the room prior to speaking about the Wasatch
Innovation Network during a press conference at Colliers
International in Salt Lake City on July 13.
Derek Miller, president and CEO of the Salt Lake Chamber, looks around the room prior to speaking about the Wasatch Innovation Network during a press conference at Colliers International in Salt Lake City on July 13. (Photo: Scott G Winterton, Deseret News)

Salt Lake Chamber President and CEO Derek Miller said new information on the mandates was sparse following a recent trip to Washington, D.C., to speak with members of Utah's congressional delegation and other federal officials.

"While in D.C., we heard more about the Biden administration's announcement that it will pursue a new Occupational Safety and Health Administration standard through the Department of Labor," Miller said in a statement. "This new regulation on businesses has not yet been filed and no date for filing has been announced.

"When the emergency rule is filed, it will be part of the Federal Register within 48 hours and will go into law."

But, Miller said legal action will follow close behind the official filing and likely pause any implementation efforts as it morphs into a court battle.

"We expect that lawsuits will be filed immediately and further expect that a judge will enjoin the rule from going into effect and that ultimately the issue is decided in the courts," he said.

Utah Attorney General Sean D. Reyes, pictured here
during a press conference at the Capitol in Salt Lake City on July 22.
Utah Attorney General Sean D. Reyes, pictured here during a press conference at the Capitol in Salt Lake City on July 22. (Photo: Laura Seitz, Deseret News)

On Friday, Utah Attorney General Sean Reyes' office confirmed it is among a group of states poised to take legal action when the vaccine mandate rules become official.

Last week, Reyes and 23 other state attorneys general sent a letter to Biden urging him to reconsider the "unlawful and harmful" vaccine mandate plan or face a legal backlash.

"Your plan is disastrous and counterproductive," the letter reads. "From a policy perspective, this edict is unlikely to win hearts and minds — it will simply drive further skepticism.

"And at least some Americans will simply leave the job market instead of complying. This will further strain an already-too-tight labor market, burdening companies and (therefore) threatening the jobs of even those who have received vaccines."

Reyes said he believes his stance reflects the will of most Utahns.

"Both employers and employees in Utah, with unprecedented fervor, have flooded my office with messages of dire concern and extreme opposition to the proposed mandate," Reyes said in a statement last week. "I firmly agree."

While there is some evidence to suggest the claim of workers leaving jobs due to vaccine mandates may be accurate, there is similar evidence indicating some workers may do the same if workplace vaccine mandates are not put in place.

What's happening in Idaho?

On Wednesday, an attorney told Idaho lawmakers the state should adopt a health policy that would make vaccine status a private medical record that employees could refuse to make available to employers as a way to thwart Biden's vaccine mandate.

Christ Troupis told the state's Committee on Federalism that such a law would insulate employers from potential federal penalties involving COVID-19 vaccine mandates.

"An employee cannot be forced by his employer on condition of losing his job or her job to waive his or her right not to disclose their vaccination status," Troupis said. How could employers "be fined for having unvaccinated employees if they can't ask whether they're vaccinated or not?"

Idaho lawmakers are also looking at ways the state could sidestep another aspect of Biden's plan that requires employees of facilities that receive Medicare and Medicaid funding to be fully vaccinated, a provision that impacts about 17 million U.S. workers.

One strategy Idaho legislators looked at this week includes potentially steering around that requirement by rejecting money the state receives from the federal government, roughly $2.3 billion involving Medicaid, according to state officials.

Senate President Stuart Adams, R-Layton, speaks during
a special session at the Capitol in Salt Lake City on May 19.
Senate President Stuart Adams, R-Layton, speaks during a special session at the Capitol in Salt Lake City on May 19. (Photo: Kristin Murphy, Deseret News)

Utah lawmakers gearing up for possible special session

Utah lawmakers are also poised to take action against the Biden vaccine mandates, though what form that comes in remains a question.

Options for state legislators include possibly calling themselves into a special session in October, Senate President Stuart Adams, R-Layton, and House Speaker Brad Wilson, R-Kaysville, told the Deseret News this week.

"What we need is less controversy and more people vaccinated," Adams said. "When you do a blanket mandatory requirement, you get more controversy, and, in fact, you may not get more people vaccinated. And that's the problem with President Biden's blanket (mandate)."

When the details of Biden's plan are unveiled and if the Utah Legislature determines action is "appropriate," Adams said lawmakers will consider "calling ourselves back in a special session."

While battling Biden's vaccine plan has become a rallying cry for GOP elected officials, some legal experts, including Jennifer Olivia, director of the Center for Health and Pharmaceutical Law at Seton Hall University, have defended Biden's plan as constitutional, arguing the "U.S. Supreme court has long held Americans do not have a constitutional right to harm their fellow citizens," she wrote in an opinion piece for NBC News.

It also remains unclear what types of exemptions may be available to employees working for companies big enough to be covered by the new mandate.

Information posted by Safer Federal Workforce outlined some scenarios that would earn exemption status for federal employees.

"Employees must be fully vaccinated other than in limited circumstances where the law requires an exception," reads Safer Federal Workforce's FAQ page. "In particular, an agency may be required to provide a reasonable accommodation to employees who communicate to the agency that they are not vaccinated against COVID-19 because of a disability or because of a sincerely held religious belief, practice or observance."

Contributing: Associated Press

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Art Raymond

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