Arkansas Gov. Asa Hutchinson on Thursday said the state will file a legal challenge to President Joe Biden’s workplace vaccine mandate, saying the rules will harm businesses’ ability to hire and retain employees and further disrupt an economic recovery rattled by supply chain issues.
Arkansas joins several other Republican-led states that have sued or plan to sue over the mandate, which requires workers at companies of 100 employees or more to be fully vaccinated against COVID-19, or test negative at least once a week.
About 84 million workers will be affected by the mandate. Tougher rules apply to another 17 million people who work in nursing homes, hospitals and other facilities that receive money from Medicare and Medicaid. Testing is not an option for those workers — they have to be vaccinated.
The mandate is set to take effect Jan. 4 under rules published today by the Occupational Safety and Health Administration.
Asked about the likelihood of winning a lawsuit, Hutchinson said in a news conference that the OSHA rules present a “significant Constitutional challenge” because the federal government has “usurped the authority of the states in a public health matter.”
He said it will be more difficult to challenge the rules related to Medicare and Medicaid funding, which are tied to agreements with the federal government.
“I’ve asked my agency directors and my department secretaries, very importantly, to prepare comments within the next 60 days to the proposed rules, “Hutchinson said. “These are emergency rules that can be adjusted. We want to make a strong case, particularly that we can have a testing alternative for our employees.”
Hutchinson said the mandate could be particularly challenging for the state’s Human Development Centers, where 45% of employees would not meet vaccination requirements. The centers provide housing and care for people with intellectual disabilities, and they’re already known for high turnover.
A national group representing more than 14,000 state-run health care centers expressed similar concerns. Mark Parkinson, the CEO of the American Health Care Association and National Center for Assisted Living, said in a statement that the group supports the intent of the policy but is worried it will worsen a workforce problem at long-term care centers.
“Even a small percentage of staff members leaving their jobs due to this mandate would have a disastrous impact on vulnerable seniors who need around-the-clock care,” the statement says
Under the mandate, businesses won't be required to provide or pay for COVID-19 tests, but they must give paid time off for employees to get vaccines and sick leave to recover from side effects. The requirements for masks and paid time off for shots will take effect Dec. 5.
Companies that don’t comply with the rules could be fined up to $14,000 for each violation.
Complicating matters for Arkansas businesses is a new state law that conflicts with Biden’s mandate. The law allows employees to opt-out of workplace vaccine requirements if they’re tested weekly for the virus or can prove they have antibodies, even though health officials have said antibody tests should not be used to assess immunity.
“It’s a huge mess,” labor lawyer Stuart Jackson of Wright Lindsey Jennings of Little Rock told Arkansas Business.
The Arkansas Department of Commerce estimated in September that more than 1,400 businesses in the state could fall under the mandate. That number includes businesses with 100 or more employees and could cover as many as 426,000 workers.
Some of Arkansas’ biggest employers, including Tyson Foods Inc. of Springdale, have already mandated vaccines. The meat giant reported that 96% of its 120,000-person workforce was vaccinated by the company’s Nov. 1 deadline.
U.S. Sen. John Boozman tweeted on Thursday that the mandate is government overreach and “counterproductive.” He’s among about 40 Senate Republicans supporting a Congressional Review Act resolution to block OSHA from implementing the rules. But the measure is almost certain to fail in the Democrat-controlled Congress.
More than 740,000 people in the U.S. have died from the virus. The death toll in Arkansas is over 8,400.
Arkansas’ vaccination rate of about 48% puts it behind most other states. Hutchinson said Arkansas will continue to promote the vaccine but that Biden’s mandate would “create hardship on people, business and our efforts to get people back to work.”
About 66% of state employees, including the governor, are vaccinated.
The Associated Press contributed to this report.