Gov. Hutchinson believes ‘significant constitutional challenge’ exists to new federal vaccine mandates

The White House on Thursday (Nov. 4) published rules that include requiring certain employers to mandate COVID-19 vaccines for employees and implement weekly testing protocols no later than Jan. 4, 2022. Another rule will require most healthcare workers to be fully vaccinated by Jan. 4.

Gov. Asa Hutchinson held a press briefing Thursday afternoon to explain his opposition to the mandates. He said the new federal rules do not apply to employees of state and local governments, including public school employees. The governor also said a “very significant constitutional challenge” exists and he plans to support legal action expected to be filed by Arkansas Attorney General Leslie Rutledge.

Rutledge had not announced legal action as of this posting, but on Oct. 29 said she was joining a complaint against the previously released mandates for employees of federal contractors. That complaint was filed in the U.S. District Court for the Eastern District of Missouri and led by the Missouri and Nebraska attorneys general.

President Joe Biden announced on Sept. 9 he had instructed the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop guidelines to require employee vaccinations for businesses with 100 or more employees. The White House estimated the rules will apply to 84 million employees.

Following are the key points in the 490 pages of new OSHA rules.
• Employers who meet the established criteria and/or are federal contractors must ensure employees receive their final vaccination – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by Jan. 4.
• Employees who meet exemption rules must produce a negative COVID test each week.
• Employers must pay employees for any time required to get the vaccine shots, and any sick leave needed to recover from side effects of the shots.
• Unvaccinated employees must wear masks at all times when in the workplace.

Also on Thursday, the Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services announced that all healthcare facilities receiving Medicare and Medicaid reimbursements must ensure all employees are vaccinated. According to CMS, there are an estimated 17 million workers at 76,000 at hospitals, nursing homes and other health care operations who fall under the new rule. The plan does not include those who work entirely by remote means.

The new OSHA and CMS rules also come with stipulations that their requirements supersede any state or local rules prohibiting mandates or other measures in the new federal guidelines.

“According to Wall Street analysts, vaccination requirements could result in as many as 5 million American workers going back to work, and a survey of prominent, independent economists found unanimous agreement that vaccination requirements will ‘promote a faster and stronger economic recovery,’” noted the White House statement that accompanied the rollout of the new rules.

In addition to supporting litigation to block the employer mandate, Gov. Hutchinson said at the press conference he is asking his legal team to determine if “an effective legal challenge” exists to the CMS rules. Although state government employees are exempt, the state’s five human development centers operated by the Arkansas Department of Human Services do fall under the new CMS rules. Gov. Hutchinson said it is difficult now to keep the centers – which report 55% of employees being vaccinated – adequately staffed and the new rules will only make that more difficult.

Gov. Hutchinson also said the new rules could cause workforce issues in shipping and trucking industries during a time the sector is struggling to unwind supply chain bottlenecks.

“In a time of supply shortages, this is the last thing we need to do is to lose workers and drivers for trucking companies that are so critical to having the supplies that we need in society today and to keep our economy moving,” he said.

The Arkansas State Chamber of Commerce/Associated Industries of Arkansas is conducting a webinar Monday about the new rules. Randy Zook, executive director of the business advocacy group, said employers who fall within the rules have no room to avoid the mandate.

“We don’t like it, but if you’re subject to OSHA, you’re going to have to do what they tell you to do,” Zook told Talk Business & Politics. “It’s marginally helpful that the feds gave us through the holiday season to get this done. Maybe that will help ease the disruption for employers.”