Ken Paxton

Texas AG Paxton Sues Over New COVID-19 Vaccine Rules for Big Businesses

The general's filing comes a week after the state filed a separate lawsuit over vaccine mandates for federal contractors

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What to Know

  • Texas AG Ken Paxton says new vaccine rules are an abuse of power and he's asking the court to strike it down.
  • New rules order any business with more than 100 employees to require vaccines or weekly testing or face a fine.
  • The new order goes into effect on Jan. 4, 2022.

Texas Attorney General Ken Paxton is leading a multi-party lawsuit against the Biden Administration's new COVID-19 vaccine rules that order businesses with more than 100 employees to either mandate vaccinations by Jan. 4, 2022, or require weekly testing.

“The Biden Administration’s new vaccine mandate on private businesses is a breathtaking abuse of federal power,” said Paxton in a statement Friday morning.

OSHA's mission is "to ensure safe and healthful working conditions for workers by setting and enforcing standards." To that end, the Biden Administration asked OSHA to issue an emergency temporary standard (ETS) because of the grave danger COVID-19 presents to unprotected people.

According to a Department of Labor report filed in the federal register, "OSHA shall issue an ETS if the agency determines that employees are subject to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and an ETS is necessary to protect employees from such danger." Because COVID-19 has killed more than 725,000 people in the United States in less than two years, while also sickening millions, the administration contends the virus continues to be a threat to workers.

Paxton, however, said Friday that OSHA has only limited power and specific responsibilities and that the ETS goes way outside those bounds.

"This ‘standard’ is flatly unconstitutional," Paxton said. "Bottom line: Biden’s new mandate is bad policy and bad law, and I’m asking the Court to strike it down.”

Top White House Medical Advisor Dr. Anthony Fauci defended the plan at a hearing on Capitol Hill Thursday. "We know that vaccines absolutely save lives and we know that mandates work," he said.

The new requirements, which were first previewed by President Joe Biden in September, will apply to about 84 million workers at medium and large businesses, although it is not clear how many of those employees are unvaccinated. Tougher rules will apply to another 17 million people who work in nursing homes, hospitals, and other facilities that receive money from Medicare and Medicaid. Those workers will not have an option for testing and will need to be vaccinated. Workers will be able to ask for exemptions on medical or religious grounds.

OSHA said companies that fail to comply could face penalties of nearly $14,000 per violation.

The ETS trumps state and local laws, including part of the ban on the vaccine mandates Gov. Greg Abbott (R) implemented last month when he prohibited any entity, including private business, from enforcing a COVID-19 vaccine mandate on workers. The governor also called on state lawmakers to pass a similar ban into law during the third special session, but a bill was not filed before the session ended. Despite some calls for a fourth session, the governor has not yet ordered lawmakers to return to Austin.

The general's filing comes a week after the state filed a separate lawsuit over vaccine mandates for federal contractors, which is also being challenged by 17 other states in two other lawsuits, arguing that the mandate violates federal procurement law and is an overreach of federal power.

Paxton's office said he filed the State of Texas’s Petition for Review directly with the U.S. Court of Appeals for the Fifth Circuit and that he will follow up soon with a Motion for Stay, in which he will lay out the many statutory and constitutional reasons why the Court must halt implementation of the ETS. 

NBC 5 News and The Associated Press
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