Is there anything Utah lawmakers can do to counter the Biden administration’s vaccine or testing mandate for some private companies? Legislative leaders believe they have come up with an unconventional plan that they think will give them some leverage.
Last month President Joe Biden announced the Department of Labor, through the Occupation Safety Health Administration (OSHA), would implement a rule requiring businesses with 100 or more employees to mandate vaccinations or weekly testing to slow down the spread of COVID-19.
Biden’s announcement brought immediate condemnation from Utah’s Republican elected leaders. Attorney General Sean Reyes said he planned to challenge any such rule in court while legislative leaders began exploring options for blocking it.
Conventional thought holds there is not much room for them to maneuver. The Supremacy Clause of the Constitution says when there is a conflict between federal and state law, federal law wins. That effectively ties legislators’ hands as they search for a response. They could always pass a resolution, but it would not have the force of law behind it.
But there is a narrow path that lawmakers believe could bear fruit. It has to do with the way OSHA operates in Utah.
Utah is one of 22 states that enforces workplace safety through a “state-run program.” In Utah, instead of OSHA the program is called Utah Occupational Safety and Health (UOSH) and is funded by a mix of state and federal money. In the current fiscal year, $2.5 million of the budget for UOSH comes from federal sources and about $1.15 million is from state money.
While federal funds cover a substantial part of the budget, the state’s portion of the money is why lawmakers believe Utah may have some wiggle room.
“When the rule comes out, whether or not we choose to implement it or go into a process where we’re talking with OSHA and the federal government about not implementing that component,” House Speaker Brad Wilson, R-Kaysville, said. “We don’t know yet if that’s going to be something that will work.”
It may be a policy Hail Mary but it comes from the same playbook as the push for Utah to declare itself a 2nd Amendment “sanctuary,” where the state would refuse to implement new federal gun laws they deem to be unconstitutional. In practical terms, Utah could refuse to collaborate with federal law enforcement operations targeting the vaccine mandate.
Similarly, UOSH employees are state — not federal — workers. Theoretically, the Legislature could direct the direct those employees to not implement the federal standards.
But, it’s not certain that this gambit would work, something Wilson readily admits.
“There are challenges with us not implementing the rule. There’s a process we need to go through if we choose to push back on it,” Wilson says. “Once we know what this rule looks like, we’ll be able to respond.”
Here is the biggest hurdle. Being a “state-run program,” Utah’s UOSH must implement workplace safety rules that are at least “as effective as” OSHA federal safety standards and regulations. That means Utah is free to implement and enforce standards that are higher than the federal regulations, but they cannot be more lenient.
Utah could be making a huge gamble if they decide to pick a fight with OSHA over Biden’s mandate.
“Our agreement with the federal government is that our state plan will be at least ‘as effective as’ federal OSHA,” a spokesperson for the Utah Labor Commission tells The Tribune in an email. “If we refuse, it is possible that we could be considered ‘not as effective as’ and federal OSHA could take some sort of action.”
In fact, Utah could lose federal funding for UOSH or even have its state plan revoked if they go that route. If that happens, then OSHA would be in charge of enforcing workplace safety in Utah.
Wilson says many of his Republican colleagues may be willing to take that risk to fight back against what they see as an unacceptable government overreach.
“It’s just not the government’s role to get in this relationship. It’s a person’s decision or a business’s decision, but government should not be foisting this requirement on businesses,” Wilson said.