By Garry Rayno, InDepthNH.org
CONCORD — The state has joined a second lawsuit seeking to block a vaccine mandate issued by the Biden administration.
In a petition filed Friday in a federal appeals court with 10 other states, the petitioners seek to block implementation of Occupational Safety and Health Administration’s emergency standards requiring all companies with more than 100 employees to require vaccination or weekly testing of employees for COVID-19. Companies that fail to comply face fines.
The emergency temporary standards would not go into effect until January 2022.
The suit comes a day after New Hampshire had the highest number of deaths — 11 — since January and total infections and hospitalizations approaching similar levels as at the height of the pandemic last winter.
Most of the health protection measures imposed by Gov. Chris Sununu have been discontinued while schools, colleges and long-term care facilities continue to experience significant infections from the Delta variant.
The state also joined a suit last week with nearly the same states to block federal COVID-19 vaccine mandates for federal contractors and federally contracted employees.
Friday’s petition claims the federal mandate is unconstitutional, unlawful, and unwise as did the earlier filing.
“The federal government lacks constitutional authority under its enumerated powers to issue this mandate,” the petition claims, “and its attempt to do so unconstitutionally infringes on the States’ powers expressly reserved by the Tenth Amendment.”
The suing states note the U.S. Supreme Court has long recognized that vaccine mandates are within the police powers of states, and that “they are matters that do not ordinarily concern the national government.”
The group also claims that OSHA lacks the statutory authority to issue the emergency temporary standard.
“Its unlawful mandate will cause injuries and hardship to working families, inflict economic disruption and staffing shortages on the States and private employers,” the petition says, “and impose even greater strains on struggling labor markets and supply chains.”
They ask the court to stop implementation of the standards until judicial review, and to find the mandate illegal.
The petition was filed at the Eighth District Federal Circuit of Appeals.
In signing on to the petition, Sununu reiterated his support for vaccines although the state is the least vaccinated in New England. The Executive Council’s recent rejection of $27 million in federal funds will delay programs for vaccinating children five to 11 years old and for booster shots for the elderly and health compromised, state health officials have said.
“As the head of state, I recognize the limitations of government in mandating this personal medical decision,” Sununu said in a statement. “President Biden has created a loophole to facilitate this overreach, which is why I fully support the Attorney General’s decision to sign on to this lawsuit.”
Attorney General John Formella said the petition would help protect the state’s businesses from the illegal mandate.
“The new Emergency Temporary Standard issued by OSHA is illegal and would impose significant burdens on New Hampshire businesses and their employees,” Formella said. “We are therefore obligated to take action to protect the interests of our State’s citizens and businesses.”
The states filing the petition along with New Hampshire are Missouri, Nebraska, Arizona, Alaska, Arkansas, Iowa, Montana, North Dakota, South Dakota, and Wyoming.
All but Arizona filed the suit seeking to block the federal mandate requiring federal contractors and federal contract employees to be vaccinated or agree to frequent testing.
That suit was filed in Eastern U.S. District Court of Missouri and also claims the federal executive order usurps powers that traditionally belong to the states, including police powers and violates the constitutional separation of powers provision between the federal and state governments.
Other vaccination mandates issued by the president’s executive order include for federal employees, and for healthcare workers in facilities that receive Medicare or Medicaid funding.
The recent surge of infections comes prior to winter when spread is usually more rapid with people spending more time indoors.
Earlier this year Sununu was the last New England governor to issue a mask mandate and the first to end it. New Hampshire also ended many public health restrictions before other New England states.