Deadline is Jan. 4: The first rule, issued by the Occupational Safety and Health Administration, covers companies with 100 or more employees, applying to an estimated 84 million workers. Companies must ensure that their workers are either fully vaccinated against COVID-19 by Jan. 4 or that they test negative for COVID-19 at least once a week. The rule will take effect as soon as it’s published in the Federal Register.
Workers must get paid time off to get vaccinated: Under the OSHA rule, employers must pay workers for the time it takes to get vaccinated and provide sick leave for workers to recover from any side effects.
Employers don’t need to pay for testing: In a move that appears designed to push workers to choose vaccinations over testing, the rule does not require employers to pay for or provide testing to workers who decline the vaccine. However, collective bargaining agreements or other circumstances may dictate otherwise.
Unvaccinated people must wear masks: Unvaccinated workers must also wear face coverings while on the job.
Health care workers don’t have testing option under separate rule: A second rule issued by the Centers for Medicare & Medicaid Services requires some 17 million health care workers to be vaccinated by the same deadline, Jan. 4, but with no option for weekly testing in lieu of vaccination. The rule covers all employees — clinical and non-clinical — at about 76,000 health care facilities that receive federal funding from Medicare or Medicaid.
Earlier, Biden had ordered federal workers and contractors to be vaccinated, with no testing option. Federal workers have until Nov. 22 to get the shots, while federal contractors have until Jan. 4.
[…]
In the case of the OSHA rule, enforcement will largely fall to companies themselves. With only a couple thousand state and federal OSHA inspectors nationwide, there is no mechanism for checking up on millions of workplaces to see whether they are in fact keeping vaccination and testing records.
Rather, OSHA inspectors will mostly respond to employee complaints and add COVID-related inspections to their to-do lists when they are already on-site somewhere. Employers who violate the rule can face fines of up to $13,653 per violation for serious violations and 10 times that for willful or repeated violations.
The company I work for will fall under this mandate. They have been waiting for the official rules before saying what the company policy will be, so I expect to see a communication about that soon. I have a co-worker who is Not Happy about this. I’m sure you can guess how I feel.
The White House said the new rules preempt any state and local laws, weakening Gov. Greg Abbott’s ban on COVID-19 vaccine mandates, employment lawyers said.
Abbott issued an executive order last month banning any entity in Texas, including private businesses, from requiring anyone to get the COVID-19 vaccine. The new Biden administration rule would void part of the ban, but it would still apply to everyone else in the state, including local governments, school districts and smaller businesses.
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The conflicting vaccine mandates put the many Texas businesses that receive federal contracts in a tough position: Comply with federal law and violate Abbott’s ban, or comply with Abbott and turn down business from the federal government.
American Airlines and Southwest Airlines said they would continue requiring employee vaccinations despite Abbott’s new order.
See here, here, and here for some background. As the story notes, the state of Texas has filed a lawsuit against the national mandate for federal contractors, which has not yet had a court date. A day after the updated OSHA rules came out for employers, Texas filed another lawsuit, because of course they did.
Texas Attorney General Ken Paxton sued the Biden administration on Friday over new federal COVID-19 vaccine rules announced the day before, which order big businesses to mandate vaccination against the virus among their employees by Jan. 4 or require regular testing.
The new federal rules preempt state and local laws, including part of Gov. Greg Abbott’s statewide ban on vaccine mandates.
“The Biden Administration’s new vaccine mandate on private businesses is a breathtaking abuse of federal power,” Paxton said in a written statement Friday.
The U.S. Labor Department, which drafted one of the rules, “has only limited power and specific responsibilities,” Paxton said. “This latest move goes way outside those bounds. This ‘standard’ is flatly unconstitutional. Bottom line: Biden’s new mandate is bad policy and bad law, and I’m asking the Court to strike it down.”
Obviously, I’m not going to take Ken Paxton’s word on that. Texas is not the only state suing over this order, and a little searching led me to this AP story about the other lawsuits, which has some prognostication on the suits’ viability.
Lawrence Gostin, a professor at Georgetown University Law Center and director of the World Health Organization’s center on health law, said the half-century-old law that created OSHA gives it the power to set minimum workplace safety measures.
“I think that Biden is on rock-solid legal ground,” he said.
Critics have taken aim at some aspects of the requirement, including that it was adopted as an emergency measure rather than after the agency’s regular rule-making process.
“This is a real emergency,” said Gostin, who has spoken with the Biden administration about the requirement. “In fact, it’s a national crisis. Any delay would cause thousands of deaths.”
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So far, courts have allowed businesses on their own to require employees to be vaccinated. But Michael Elkins, a Florida-based employment lawyer, said those decisions do not necessarily mean judges will rule the same way when it comes to the federal government’s requirement.
“You may see a federal judge, or a bunch of them, say, ‘This is just overreach,’” Elkins said.
Benjamin Noren, a New York-based labor lawyer, said he thought the rule is likely to be struck down because OSHA was intended to deal with workplace hazards such as chemicals, not a virus. He said OSHA has made 10 emergency rules in the last five decades. Of the six that were challenged, only one survived intact.
“It’s an innovative use by the Biden administration to figure out some way to mandate vaccination in the private sector,” Noren said. “I hope it works. I have doubts.”
We didn’t have to wait long to find out. I started this draft on Friday morning when the story was just the OSHA announcement. By the time I finished the initial draft, the lawsuits were announced, so I added that on. Somehow, I figured there wouldn’t be any more news until the next week, so I waited to publish on Sunday just to spread things out a bit. That turned out to be a poor decision.
A U.S. federal appeals court issued a stay Saturday freezing the Biden administration’s efforts to require workers at U.S. companies with at least 100 employees be vaccinated against COVID-19 or be tested weekly, citing “grave statutory and constitutional” issues with the rule.
The ruling from the United States Court of Appeals for the Fifth Circuit comes after numerous Republican-led states filed legal challenges against the new rule, which is set to take effect on Jan 4.
In a statement, Solicitor of Labor Seema Nanda said the Labor Department was “confident in its legal authority” to issue the rule, which will be enforced by the Occupational Safety and Health Administration (OSHA).
“The Occupational Safety and Health Act explicitly gives OSHA the authority 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,” she said. “We are fully prepared to defend this standard in court.”
A copy of the order is here. If you’re thinking it doesn’t say much and stands in stark contrast to the court’s actions on SB8, you’re not alone.
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This isn’t just the same *court* that has bent over backwards to allow #SB8 to go into effect (despite “grave constitutional issues”); it’s the same *panel* that reached out to prevent the district court from even *holding* a preliminary injunction hearing in the providers’ case.— Steve Vladeck (@steve_vladeck) 1:28 PM – 6 November 2021
If we ever get around to expanding the Supreme Court, could we maybe give some thought to doing the same to the Fifth Circuit? Because there are some trash judges on that court, and something needs to be done to restore some sense of justice there. The Biden administration has until Monday at 5 PM to file its response, so look for more updates soon. I won’t sit on any of them. WFAA has more.
Vaccinating during a so called pandemic with a leaky vaccine removes the evolutionary pressure for the virus to become less lethal.
Jason, that’s bullshit. Vaccines mean fewer people die from the disease. Or would you be happy with 3 million deaths in the US, just to prove your point?
Ross, you can’t know this with any certainty. The Pfizer study showed that there were 14 deaths in the control (placebo) group and 15 in the treatment arm of their study. The fact checkers promptly fact checked this, saying that this is all deaths in the study cohort—in other words, deaths which may or may not have been caused by COVID or vaccine related adverse events. Fair enough, but this still doesn’t demonstrate with any certainty that the vaccination means fewer people die.
Your figure of “3 million deaths” is pulled from thin air. Just like the director of the CDC Rochelle Wolensky says that wearing a mask reduces your chance of getting COVID by 80%. No evidence for this astounding claim.
Meanwhile, there is a whistle blower letter published in the British Medical Journal which details the corners cut and the safety and data integrity problems with the Pfizer trial. For some reason, no US journals wanted to publish this. It doesn’t mean that the vaccine is not safe or efficacious, but it raises some questions there.
Further, OSHA, which is being used for the insane tyranny of the Biden Junta, has even published on its Web site, that they don’t want to protect workers injured by the job forcing them to get vaccinated. They aren’t collecting reports:
“DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination at least through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.”
They aren’t even hiding it. The vaccines are safe and effective, and we aren’t going to look at any evidence to the contrary. If your employer forces you to get it, and you are injured, you’re on your own. No workers comp.
If the US Constitution has enable to even allowed this type of tyranny, it’s time to rethink that document.
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