Arizona schools, teachers, staff and employees of workplaces with more than 100 co-workers are among the people impacted by a federal court’s decision to pause implementation and enforcement of the Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard as lawsuits against the policy move through federal courts.

OSHA’s temporary standard, published Nov. 5, 2021, in the federal register, requires that by Jan. 4, 2022, all employers with 100 or more employees to establish, implement, and enforce a written mandatory vaccination policy, require employees to provide proof of COVID-19 vaccination or take a test to detect COVID-19 at least once every 7 days and provide documentation of the test result to the employer, and require employees who are not fully vaccinated to wear a face covering in the workplace or face penalties of up to $14,000 per violation.

OSHA’s emergency temporary standard was developed “to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”

In response to OSHA’s emergency temporary standard, Republican governors said they were against the mandates, and some said they would take actions including executive orders to keep state agencies from enforcing the rules, according to an Associated Press article.

At that time, Arizona Gov. Doug Ducey said, “The U.S. Department of Labor, through the Occupational Safety and Health Administration (OSHA), is issuing these mandates with no public input from the businesses and employees these regulations affect. Additionally, OSHA is expecting businesses with 100 employees to have the same resources as large corporations. This is a direct attack on not just personal liberty but also the very businesses — large and small — that keep our state, country and economy running. After the difficulties that COVID-19 has posed for individuals, businesses and the current workforce shortages, the administration should be assisting with getting them back on their feet rather than imposing more regulatory burdens.”

Earlier this year, the Arizona Legislature included laws prohibiting community colleges and universities from requiring COVID-19 vaccinations in the budget bills that was later overturned for violating the the title and subject matter requirements of the Arizona Constitution by Maricopa County Superior Court Judge Katherine Cooper on Sept. 7, 2021. Arizona education and children’s advocates filed the lawsuit against the state on the laws prohibiting school mask mandates and teaching controversial topics that the Arizona Legislature included in the budget bills and Gov. Doug Ducey signed into law this summer.

Soon after the OSHA’s emergency temporary standard was released, attorneys general in 11 states – Arizona, Missouri, Montana, Nebraska, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, and Wyoming & other plaintiffs that include businesses and private schools – filed a lawsuit against the policy that same day in the U.S. Court of Appeals for the Eighth Circuit.

Others have expressed support for the OSHA policy.  

“Once again, the Biden administration has stepped up to keep workers safe and crush the scourge of COVID so we can continue to pave a pathway out of this pandemic. These commonsense actions will save thousands of lives and curb hospital stays that are not only devastating for patients but harrowing for the frontline workers charged with their care,” said Randi Weingarten, president of the American Federation of Teachers on Nov. 4, 2021.

“The administration understands that vaccination and testing are crucial pieces of an overall layered mitigation strategy to keep workplaces, and families, safe. To that end, we need to ensure that, as these rules roll out, we maintain a strong supply of test kits for rural and vulnerable communities,” Weingarten said.

Why Arizona would be impacted

Public district schools and local education agencies in Arizona and 20 other states with OSHA-approved state plans would be expected to comply with the policy if federal courts rule in support of the measures. Those states include Alaska, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. (Link to https://www.osha.gov/coronavirus/ets2   and https://districtadministration.com/osha-vaccination-masks-covid-testing-rule-apply-schools-21-states/ )

The OSHA policy would also apply to private schools and some charter schools depending on their administrative structure and governance in all 50 states, according to a Congressional Research Service report “OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities: COVID-19 Issues” on Sept. 13, 2001. (Link to https://crsreports.congress.gov/product/pdf/IF/IF11619 )

State plans must be “at least as effective” as OSHA’s standards and enforcement and “state and local government entities in states with state plans, including LEAs, would be required to comply with the OSHA ETS on COVID-19 vaccination if it becomes effective,” according to the report.

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In response to the OSHA policy, the Industrial Commission of Arizona, which has the exclusive authority to decide if, when and to what extent the state will adopt the OSHA emergency temporary standard, said it will review it, and determine whether to adopt all or part, but until then “the temporary standards are not binding or enforceable against Arizona’s private and public sector employers and employees.”

Two weeks earlier, the Biden administration said it could revoke workplace-safety oversight from Arizona, Utah and South Carolina over COVID-19 safety precautions health care facilities that treat people with COVID-19, according to an article in The Arizona Republic.

Similar lawsuit filed by private employers

A similar lawsuit to block the OSHA policy was brought forward on Nov. 5, 2021, by private employers, and the U.S. Court of Appeals for the Fifth Circuit entered a temporary stay in the implementation and enforcement of the policy and ordered briefs from OSHA due Nov. 8 and the plaintiffs due Nov. 9.

On Nov. 12, 2021, the U.S. Court of Appeals for the Fifth Circuit ordered OSHA to “take no steps to implement or enforce” it’s policy “until further court order.”

In response, the U.S. Department of Labor filed a motion to lift the stay on the OSHA emergency temporary standard.

Health care worker vaccine mandate blocked nationwide

Yesterday, the U.S. District Court for the Western District of Louisiana granted a nationwide injunction which puts on hold a COVID-19 vaccine mandate for health care workers as the multi-state lawsuit against the OSHA rules that Arizona is a part of moves forward.

“This matter will ultimately be decided by a higher court that this one,” Judge Terry A. Doughty wrote in the Nov. 30, 2021 ruling. “However, it is important to preserve the status quo in this case. The liberty interests of the unvaccinated requires nothing less.”

In response to that ruling, Arizona Attorney General Mark Brnovich said, “Today, we won a major victory for our health care heroes across the country. It’s unacceptable for the federal government to tell our medical professionals what to inject into their bodies. I will continue to push back against these unconstitutional COVID-19 vaccine mandates for all Americans.”

That nationwide injunction came after the U.S. District Court for the Eastern District of Missouri granted a preliminary injunction earlier in the day on Nov. 30, 2021, blocking implementation and enforcement in 10 states of the Nov. 5, 2021, U.S. Department of Health and Human Services’ Centers for Medicare and Medicaid Services’ federal COVID-19 vaccine mandate for healthcare workers proposed by President Joe Biden’s administration.

After reviewing a lawsuit against the policy by Attorney Generals from Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire, U.S. District Court Judge Matthew Schelp said he agreed with plaintiff’s claims and evidence that the mandate “will more than likely exacerbate the already-existing staffing problem”  and that “facilities in rural locations, already hard-pressed to find qualified applicants regardless of vaccination status, will have to evaluate what healthcare services they could still safely provide, if any at all, in the region they serve.”

“The public has an interest in stopping the spread of COVID. No one disputes that. But the Court concludes that the public would suffer little, if any, harm from maintaining the ‘status quo’ through the litigation of this case,” said Judge Schelp in his ruling.

“The Court finds that in balancing the equities, the scale falls clearly in favor of healthcare facilities operating with some unvaccinated employees, staff, trainees, students, volunteers, and contractors, rather than the swift, irremediable impact of requiring healthcare facilities to choose between two undesirable choices—providing substandard care or providing no healthcare at all,” said Judge Schelp in his ruling.

What’s next?

Arizona schools and employers may consider examining their COVID-19 measures while OSHA has suspended their implementation and enforcement of its COVID-19 Vaccination and Testing Emergency Temporary Standard until the outcome of the lawsuits.

The U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over all challenges to OSHA’s emergency temporary standard.

The U.S. Department of Labor has filed a motion to lift the federal court’s stay on the policy.