Can the federal government legally require COVID-19 vaccinations for businesses with one hundred or more employees?
Apply this to your situation
This page answers the general question as of 2021. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Representative Mary Bentley asked whether the federal government's vaccine-mandate rule for employers with 100 or more workers was lawful. Attorney General Leslie Rutledge declined to answer because the question was actively in litigation. She specifically pointed to State of Missouri v. Biden, No. 21-3494 in the Eighth Circuit, which had been consolidated with other lawsuits and was at that point pending before the Sixth Circuit. Under longstanding AG-office policy, she would not opine on a matter the courts were deciding.
The question never got a substantive AG answer. The federal mandate's fate was decided by the courts, not by this office. Use this opinion only as evidence of the AG's pending-litigation policy.
What this means for you
If you are an employer who once tried to use this opinion to plan compliance
This opinion gave you nothing on the merits. The legal question of whether the federal government could mandate vaccines for 100-plus-employee businesses was answered by federal courts, not by the Arkansas AG. If you are looking back at this opinion now to understand the law that applied at the time, follow the federal litigation thread, particularly the Sixth Circuit's resolution of the consolidated cases and the Supreme Court's later ruling in National Federation of Independent Business v. OSHA, which addressed the OSHA Emergency Temporary Standard.
If you are a state legislator hoping for a quick AG answer on a federal preemption question
The pending-litigation decline is the standard response when active federal litigation will produce a binding answer. The AG will not race the courts. If you need a state-law answer that hinges on federal preemption, the AG may still opine on the state-law half once federal courts have ruled.
Common questions
Q: Did the AG say the federal vaccine mandate was unlawful?
A: No. She declined to address the question on the merits because federal courts were deciding it. The opinion is a procedural decline, not a substantive ruling.
Q: Why does the AG decline to weigh in on issues pending in court?
A: It is a longstanding policy: the Attorney General is an executive officer, and issuing a formal opinion on an actively litigated question could be seen as trying to influence the courts. The opinion cites Ops. Att'y Gen. 2020-040, 2018-146, 2016-027, and 2015-005 for the policy.
Q: Where can I find the actual legal answer about the federal vaccine mandate?
A: In the federal courts. The cases were consolidated in the Sixth Circuit, and the U.S. Supreme Court eventually addressed the OSHA Emergency Temporary Standard for large employers. That body of decisions, not this opinion, is where the substantive answer lies.
Q: Can I rely on this opinion at all?
A: For the AG's pending-litigation policy, yes. For the legality of the federal mandate, no. The opinion expressly declines to answer that question.
Background and statutory framework
The Arkansas Attorney General issues advisory opinions to state officials under Ark. Code Ann. § 25-16-706. Those opinions are persuasive only and are not binding on courts. The office's longstanding pending-litigation policy reflects executive-branch deference to the judiciary on questions the judiciary is actively resolving.
The litigation the AG cited, State of Missouri v. Biden, No. 21-3494 (8th Cir.), was part of a multi-circuit challenge to the OSHA Emergency Temporary Standard requiring employers of 100 or more workers to mandate COVID-19 vaccination or weekly testing. Under the federal multi-district consolidation procedure for challenges to agency rules, the cases were consolidated, and venue was transferred to the Sixth Circuit. The eventual federal-court answers, not this AG opinion, controlled.
Citations
- Ops. Att'y Gen. 2020-040, 2018-146, 2016-027, 2015-005 (decline-policy precedent)
- State of Missouri, et al. v. Joseph Biden, Jr., et al., No. 21-3494 (8th Cir.) (consolidated and transferred to 6th Cir.)
Source
Original opinion text
Opinion No. 2021-079
November 29, 2021
The Honorable Mary Bentley
State Representative
142 Shady Lane
Perryville, AR 72126-8103
Dear Representative Bentley:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
This is in response to your request for an opinion regarding recent vaccine
mandates issued by the federal government. In this regard, you have asked the
following question:
Can the federal government legally require mandatory vaccines for
businesses with one hundred or more employees?
RESPONSE
I must respectfully decline to render an opinion in response to your question
because this matter is currently being litigated in State of Missouri, et al. v. Joseph
Biden, Jr., et al., Case No. 21-3494 (8th Cir.), which has been consolidated with a
number of other lawsuits and is now pending before the United States Court of
Appeals for the Sixth Circuit. It is the longstanding policy of the Attorney
General's office, as a member of the executive branch, to decline to issue opinions
on matters that are pending before the courts.
I regret that I cannot be of assistance in this matter. Please do not hesitate to
contact me if I may be of future assistance in some other respect.
Sincerely,
LESLIE RUTLEDGE
Attorney General
[Footnote:
1 See, e.g., Ops. Att'y Gen. 2020-040, 2018-146, 2016-027, 2015-005 (and opinions cited therein).]
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