Proposed Vaccine Mandate Could Put Businesses in Sticky Situation

With Montana State law prohibiting a COVID-19 vaccine mandate, and a potential Occupational Safety and Health Administration (OSHA) rule that would punish businesses with 100 or more employees for not mandating such vaccinations, applicable Valley County businesses may find themselves in a legal gray area.

"I have had conversations with business owners and member of the Montana Chamber of Commerce, and obviously they are concerned they are going to be put between a rock and a hard place where - under a prospective OSHA rule - they would be looking at fines," Montana Attorney General Austin Knudsen told The Courier over the phone Friday. "Or, under state law - under the new House Bill 702 law - they are going to be subject to civil liabilities. That is an absolute fact. The Biden Administration has really put states like Montana in a tough position, and I think they have done it on purpose."

To provide clarity on the issue, Knudsen last week issued legal guidance on the status of the Biden administration's announced federal vaccine mandate and subsequent discrimination based on vaccine status, which is illegal in Montana. The guidance is intended to alleviate confusion resulting from President Biden's Sept. 9 speech discussing his plans to compel private employers to force their employees to receive the COVID-19 vaccine.

A U.S. Department of Labor spokesperson issued a statement last week stating the agency submitted the initial text of the emergency temporary standard to the Office of Management and Budget as part of the regulatory review process.

"On Oct. 12, the Biden administration said it has submitted the initial text of an emergency temporary standard rule to the Office of Management and Budget for review," Knudsen's guidance reads. "However, no such rule or regulation is currently in effect, Further, my office is preparing to immediately challenge and enjoin this federal overreach on a variety of grounds when the Biden administration issues its announced rule."

Two lawsuits have been filed challenging the new state law established by House Bill 702 that protects Montana workers from discrimination based on their vaccine status. Attorney General Knudsen's office is fighting both lawsuits in state court.

"House Bill 702 is the law in Montana, and it prohibits employers from discriminating against people based on their vaccination status," Knudsen wrote in the memo. "Two separate lawsuits have been filed attempting to rollback these protections for Montana workers, but these pro-discrimination lawsuits have not changed the law, Discrimination based on vaccination status is illegal in Montana. Violators of the law can – and should – be held accountable."

OSHA Rule

Getting a COVID-19 vaccine is "not about freedom or personal choice," President Joe Biden said during a Sept. 9 speech about the pandemic.

During the prepared remarks, Biden announced Draconian measures aimed at forcing 80 to 100 million Americans to get jabbed. If they do not comply, they could be fired from their jobs.

President Biden at that time directed OSHA to develop a rule requiring all employers with 100 or more employees to ensure that their employees either receive the COVID-19 vaccine or submit to weekly COVID-19 testing. OSHA's rule, if enabled, is projected to impact over 80 million workers in the private sector.

Non-compliant private sector businesses may be fined up to $14,000 per violation, according to The Network for Public Health Law. Via separate Executive Orders, President Biden also has mandated COVID-19 vaccines for federal employees and contractors. OSHA has not previously issued extensive vaccine mandates impacting employers.

States already are preparing Constitutional challenges to such a rule pursuant to substantive due process, the First Amendment, Equal Protection and federalism, as well as implications under existing federal laws including Title VII of the Civil Rights Act of 1964, according to The Network for Public Health Law.

Lawyers defending the proposed rule likely would argue Federal laws preempt state laws, Knudsen said.

"I have no doubt that is what they are going to argue, that federal law trumps state law, but that is simply not always the case. In certain instances, that might be. But, the Constitution is very specific that under the 10th Amendment, those powers not specifically given to the federal government are given to the state. I think that would apply here. I don't see anything in the Constitution that would give the president the authority to mandate a healthcare decision like this for every individual in the country. That is a breathtaking expansion of the executive's power. That is certainly our concern here."

Knudsen believes the Biden Administration did not properly plan the roll-out of the proposed rule.

"I don't think they have thought this through, and I think that is why we haven't seen anything out of this yet," Knudsen said.

"I think that is why they are slow walking this," Knudsen continued. "Really, all that has happened here is the president has given one speech. They haven promulgated any rules. They haven't issued anything, but I think they are getting the desired effect. Everyone is just assuming there is a mandate, [that] it already exists. It doesn't."

Knudsen also believes the Biden Administration "is likely finding what we know to be true now, that this is going to be a difficult legal hill to climb," he continued. "They are going to have to defend this pretty vigorously, because you have got states like Montana and 24 other that are going to challenge this. It is not a matter of if we are going to challenge this."

We are going to challenge it as soon as it comes down, if it ever comes down."

Montanans who remain unvaccinated currently enjoy robust protections against vaccination based discrimination, even as large media outlets and politicians attempt to marginalize them for their right to choose.

Knudsen said he will work tirelessly to protect such Montanans.

"My job as the Attorney General is to enforce Montana law and uphold the Constitution," he said. "The legislature in Montana, our dully elected legislature, enacted this law and said this is illegal discrimination. That is what I have to work with. And, I believe it is. I don't think anyone should be discriminated against based upon a private healthcare decision, because that is really what we are talking about."

Based on that, "I think it comes down to Montana [being] a very individualistic state," Knudsen continued. "We don't like being told what to do by anybody. I think most Americans are that way. But, I am afraid this is a situation where a lot of these other states which are just going to roll over and take this are going to wake up one of these days and find out they have given up some pretty important personal freedoms, and at what cost? That really is my concern here."

Anyone suffering discrimination by an employer based on their vaccination status should contact the Montana Department of Labor & Industry's Human Rights Bureau at 406-444-4356 or 1-800-542-0807. A formal complaint must be filed with the Bureau within 180 days of the alleged discriminatory action.

READ KNUDSEN'S LETTER HERE: https://content.govdelivery.com/attachments/MTAG/2021/10/14/file_attachments/1965702/2021-10-14_vaccine-legal-guidance.pdf