SD to sue after feds say private companies must require COVID vaccines or testing

South Dakota plans to sue the federal government after it said private companies with 100 or more workers must require COVID-19 vaccinations or regular testing and masking.

"We will be taking actions to ensure that the federal government remembers that the constitution does not give them the authority to take this type of action and that people have freedoms and they have personal responsibility over their health and that here in South Dakota that will be protected and defended," she said in a video.

Attorney General Jason Ravnsborg said South Dakota, Missouri and other states will be suing Friday morning.

“This is an excessive burden to place on the businesses and citizens of South Dakota. It is our belief that the federal government does not have the authority to unilaterally force private employers to mandate their employees get vaccinated or foot the bill for weekly testing.”

The federal government does have constitutional authority to enforce the rules, Department of Labor Solicitor Seema Nanda said at a news conference. She also said the rules preempt any state laws banning vaccine and testing requirements.

The Occupational Safety and Health Act allows OSHA "to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them," Nanda said.

The pandemic is clearly a grave danger, Nanda said, and is similar to OSHA requiring employers to follow other safety protocols.

COVID-19 has strongly impacted "workers who faced grave dangers and became ill or lost their lives because of workplace exposure of COVID-19," said DOL Secretary Marty Walsh. "They're not just statistics, many of these people are essential workers in our communities. The grocery store workers and delivery drivers, farmworkers and meatpackers, first responders and sanitation workers — people who were there for us throughout the entire pandemic."

The temporary emergency rules, announced Thursday by the Occupational Safety and Health Administration, would apply to just 1.2% of private South Dakota companies but 33% of workers employed by private companies.

There were 429 private businesses that employed 100 or more people in 2020, according to data from the South Dakota Department of Labor and Regulation. They employed 115,005 workers.

South Dakota Department of Labor and Regulation

South Dakota Department of Labor and Regulation

The rules

The rules would apply to more than 84 million workers representing 2/3 of the country's private-sector workforce, according to OSHA. The rules say that private companies with 100 or more employees must:

• Require COVID-19 vaccinations or weekly testing AND masking.
• Provide paid leave for workers to get vaccinated and recover from any side effects.
• Determine and maintain records of workers' vaccination status.
• Require employees to report and stay home from work if they test positive for COVID-19.

Companies that don't comply can be fined or face other punishments.

Nathan Sanderson, Executive Director of the South Dakota Retailers Association, said he's not sure if the OSHA rules will hold up in court.

In the meantime, he said, companies should determine whether they fall under these guidelines and if so, start planning how to comply. He said companies can reach out to the SDRA for guidance.

Sanderson said the vaccine is effective and business owners are doing their best to protect workers and customers. But he said the requirements are coming at a difficult time.

“I also think that there are real challenges right now related to workforce, supply chain and inflation and basically putting it on the shoulder of business to implement federal policy during the holiday season when it’s the busiest potential time that they’ve got during the year for most businesses is asking quite a lot of business owners," he said.

More details

Unvaccinated workers must wear masks by Dec. 5. They must be vaccinated or begin regular testing by Jan. 4.

The OSHA rules allow for medical and religious exemptions for vaccinations.

Workers with a "sincerely held religious belief, practice or observance" can also be exempt from COVID-19 testing and be given a "reasonable accommodation."

Reasonable accommodations could include installing physical barriers or changes to job requirements and scheduling, according to the U.S. Equal Employment Opportunity Commission.

Employers do not need to pay for the testing or masks unless required under state law or company rules. Workers might have to pay for testing if it's not covered under their insurance.

OSHA says it will change or cancel the rules as the pandemic improves.

South Dakota and other states previously filed a lawsuit against the federal government over its expected COVID-19 requirements for federal contractors.

Noem signed an executive order explaining how state workers who might be covered under those requirements can obtain a medical or religious exemption.

The order says Noem will work with legislators to extend these protections — which are already guaranteed under federal law — to workers at private businesses. The governor previously said the government can't tell businesses whether they can require vaccinations.