By M.D. Kittle
MADISON — In an anticipated move, the Wisconsin Institute for Law & Liberty sued the Biden administration Thursday in federal court following the Occupational Safety and Health Administration’s sweeping new mandate requiring workers at businesses with 100 or more employees to get the COVID-19 vaccination or be routinely tested.
The Milwaukee-based civil rights law firm is representing two Wisconsin businesses in its challenge of what WILL charges is an “unconstitutional” rule.
President Joe Biden’s OSHA is now demanding businesses employing about 84 million Americans (31 million of them unvaccinated) to require proof of vaccination or regular COVID-19 tests from those workers. Failure to comply will cost companies more than $13,000 per violation, $136,000-plus for a “willful” violation.
The mandate is slated to go into effect on Jan. 4.
“This new rule is illegal and unconstitutional. It circumvents the normal legal process, along with Congress, to claim emergency powers to impose a mandate on American business,” said Rick Esenberg, WILL’s president and general counsel. “However you feel about the COVID vaccine or even the very different question of a vaccine mandate, the Biden administration is claiming an extraordinary power to rule by decree that could be used in the future in almost unlimited and unforeseeable ways.”
The administration insists it stands on strong legal ground, arguing the rule is technically not a vaccine mandate because it includes the testing and masking provisions.
WILL’s lawsuit, filed in the United States Appeals Court for the Seventh Circuit, first and foremost seeks to stay implementation. It argues OSHA’s “extraordinary diktat” doesn’t come close to being lawful.
OSHA is employing a rarely used federal law granting the agency to issue “necessary” orders to address a “grave danger.” But the rule makes no allowance for employees who face little or no risk from the virus, the lawsuit asserts.
WILL’s clients, two Wisconsin-based manufacturers, will suffer “irreparable harm immediately” unless the stay is granted, the lawsuit states.
The businesses “must decide between two impossible choices: if they impose OSHA’s mandate, they will lose employees who do not wish to be vaccinated or tested weekly and precious days of productivity due to testing, vaccinations, and vaccine side effects. But if Petitioners fail to comply, they will face staggering fines from OSHA.”
And the harm, the lawsuit contends, is being imposed “solely by Presidential decree.”
“What’s more, the rule places upon employers not simply the obligation to make their workplaces safe, but it deputizes employers into acting as agents of an unprecedented federal public health program,” the lawsuit states.
Steve Fettig, secretary and treasurer of Tankcraft and Plasticraft in Darien, plaintiffs in the case, said the order is unconscionable.
“OSHA does not know how to run our companies. We do. OSHA does not know how to keep our employees safe. We do. And we have done so successfully since the start of the pandemic without the interference of a federal bureaucracy,” Fettig said. “We respect our employees’ fundamental right to make their own private, difficult medical choices.”
Several Republican states’ attorneys general have vowed to sue the administration over the mandate.
Wisconsin Manufacturers & Commerce President and CEO Kurt Bauer said OSHA’s new standard will place undue and unfair burdens on businesses that have already gone to great lengths and expense to protect their employees.
“It is unfortunate that the Biden Administration is forcing employers to police the vaccination status of their employees with a rule that will regrettably intensify the workforce challenges already plaguing our economy,” Bauer said.