ATLANTA — Georgia's attorney general said Thursday he had joined a coalition of 23 other attorneys general in sending a letter to President Joe Biden arguing his vaccination policy announced last week is "illegal."
The substance of the legal argument made by the attorneys general rests on past court rulings that generally went against invocations of Occupational Health and Safety Administration (OSHA) emergency temporary standards, and distinguishing COVID as a general hazard and not one specific to workplaces.
Georgia Attorney General Chris Carr told 11Alive's Joe Ripley last week that while he supports the vaccine, he opposed Biden's policy - of directing larger employers to require vaccinations or submit to weekly testing at the risk of being fired for refusal - as "an abuse of power" and "overreach."
In the letter sent Thursday, the attorneys general argue enforcing this policy through OSHA goes beyond the agency's typical purview.
"When used in the context of a law directed toward occupational safety, the words 'substances,' 'agents,' and 'hazards' relate to the dangers presented by the job itself - for example, chemicals used at job sites and tools used to carry out tasks - not to dangers existing in the world generally," it states. "All of these provisions are most naturally focused on dangers occurring at work because of one's work, as opposed to dangers occurring in society generally, including at work."
The letter also highlights past instances in which emergency temporary standards issued by OSHA faced skepticism from courts. It states that between 1971 and 1983, the agency issued nine such standards, and six faced court challenges. Of those challenges, four succeeded in vacating or staying the standards, and one resulted in a partial stay, with one being fully upheld.
The agency has adopted only one other emergency temporary standard since 1983, which was issued in June this year and is currently being challenged, according to letter (citing the Congressional Research Service.)
The letter also argues COVID does not meet a "grave danger" standard, because those who have recovered "have obtained a level of natural immunity" and "young people without co-morbidities have a low risk of hospitalization."
It's still not clear exactly how long natural immunity following a COVID infection might last, or how strong it may be. It's also not clear why the hospitalization rates of younger people would preclude older workers from being deemed at "grave danger," or what hospitalization level exactly would constitute the standard.
The letter also argues that the application of Biden's policy to businesses of 100 or more employees is "overbroad and inexact."
Targeting such employees "simply because they work at a business of a certain size, hardly seems 'necessary' to meet any such danger," the letter states.
The attorneys general believe their arguments would be well-received by the courts, citing a recent Supreme Court decision to end an eviction ban issued through the Centers for Disease Control and Prevention.
11Alive legal analyst Page Pate told 11Alive's Hope Ford that he anticipated some businesses would refuse to comply with Biden's order and even challenge it in court. He described the plan as a novel approach that hasn't before been tried through OSHA.
"The theory from the Biden administration, COVID's a big risk, vaccinations work as least as far as serious illness is concerned mostly, so we are going to require people are vaccinated or regularly tested as a workplace safety issue," Pate said.
He added it was unclear how courts would interpret this theory.
"When we think about OSHA workplace safety rules, we think of things like making sure the roof isn't falling, masking sure workers who are involved in hazardous duties have masks on, something that's obvious to protect someone's immediate risk of injury. This is very different," he said.
The letter from the attorneys general does not directly promise a lawsuit against Biden's policy, but said if the Biden administration "does not alter its course" the coalition of 24 states "will seek every available legal option to hold you accountable and uphold the rule of law."
"In yet another example of blatant disregard for the rule of law, the Biden-Harris Administration’s command-and-control strategy is condescending and counterproductive, harmful to our state’s economy, and - most importantly - unconstitutional,” Carr said in a statement.
The states joining Georgia include Alabama, Alaska, Arizona, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.