On September 9, President Joe Biden announced that his administration would implement a mandatory COVID-19 vaccinate-or-test policy for all private employers in the U.S. with 100 or more employees. The mandate will be put in place through an emergency temporary standard issued by the federal Occupational Safety and Health Administration for the purpose of protecting worker safety. Although leaders in the private sector have been given few details about what to expect as far as logistics and implementation, the lawsuits challenging the legality of this proposed rule have already begun.

On September 14, Arizona Attorney General Mark Brnovich was the first to file a lawsuit challenging the legality of the Biden administration’s proposed rule. The legal route that Brnovich has taken, however, was not to challenge the what or the how of the rule, but instead the who. Brnovich argued that this proposed rule would favor “aliens that have unlawfully entered the United States over actual U.S. citizens . . . [and shows] contempt for the actual rights of U.S. citizens.” Brnovich chose to utilize the 14th Amendment’s equal protection clause, which generally prohibits different treatment of people in the United States based on immutable characteristics like race, nationality, and sex.

Brnovich further argued that even though “the precise contours of the federal vaccination mandates are not yet clear,” because “unauthorized aliens will not be subject to any vaccination requirements ... while roughly a hundred million U.S. citizens will,” the rule violates the equal protection clause of the United States Constitution.

This specific challenge is not likely to be successful for two reasons. First, the lawsuit does not appear to be ripe, a legal concept meaning that courts should not rule on matters until there is an actual legal violation. In this case, the emergency temporary standard has not been written, much less enforced. Second, President Biden’s focus is on employers and not employees (i.e., the rule presumably will require all employees of employers who employ 100 or more employees to submit to weekly testing or receive the vaccine, not just those of a certain race or citizenship).

Regardless, this suit likely serves as an omen for multiple legal challenges that will follow when the standard is issued. These challenges could delay or even prevent adoption of any eventual mandatory COVID-19 requirement. Employers should continue to monitor OSHA’s progress on the standard as well as legal responses as part of their compliance planning.

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