Everything you need to know about the OSHA Vaccination Mandate
Early in September, Biden announced what he called a "6-pronged plan" to fight COVID. The two primary "prongs" are an executive order mandating that federal employees and contractors be vaccinated. OSHA was to issue a mandate to private businesses with more than 100 employees requiring that employees be vaccinated through an emergency temporary standard (ETS).
After two months, on Thursday, OSHA has finally issued the rule, which will require over 100 million Americans to be vaccinated against COVID-19 by Jan. 4 or get tested for the virus weekly under government rules. Along with this new rule, OSHA will consider during a 30-day public comment on the private-sector rule expanding the mandate to cover businesses with fewer than 100 workers.
Yes, you read that correctly. OSHA is considering a rule that will mandate employers with fewer than 100 employees to require their employees to be vaccinated. I would encourage you to go and comment and tell them what you think.
During a December 2020 press conference in Wilmington, Biden said he would not impose national mandates to get vaccinated for COVID-19 or wear a mask. "No, I don't think it should be mandatory. I wouldn't demand it be mandatory," Biden said of vaccines at a press conference in Delaware.
However, he has found a "workaround" using OSHA (Occupational Safety and Health Administration), the regulatory authority of the Labor Department.
OSHA has the authority to issue workplace health and safety regulations. These regulations include limits on hazardous chemical exposure, employee access to hazard information, requirements for the use of personal protective equipment, and requirements to prevent falls and hazards from operating dangerous equipment.
Hidden within the Occupational Safety and Health Act, which Nixon signed into law in 1970, there is something called an emergency temporary standard. Here is what it says:
(1) The Secretary shall provide, without regard to the requirements of chapter 5, title 5, Unites States Code, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines --
(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and
(B) that such emergency standard is necessary to protect employees from such danger.
"Without regard to the requirements of chapter 5, title 5, Unites States Code," means that they do not have to go through established Administrative Procedures.
What Are the Details?
Deadline is Jan. 4: Companies with more than 100 employees 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 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, certain union contracts may dictate whether workers can be required to pay.
Can employees do a rapid test at home and bring the test results to work: No. OHSA rules require that the employer observes the test and the results or that someone like a third party proctors the test. The employee is not permitted to self-administer or self-read the test result.
What happens if you object to receiving the vaccine: Employers are required to make "reasonable accommodations" if an employee objects to receiving a vaccine for valid reasons such as disability or religious objection. Such accommodations could be to work remotely. However, if you do not have a valid reason, your employer has a right to terminate you. You are not likely to receive unemployment benefits because your employer's reasoning for firing would be "for cause," that's tied to complying with company policy.
Unvaccinated people must wear masks: Unvaccinated workers must also wear face coverings while on the job.
Will remote workers be subject to testing: The federal mandate to be vaccinated or tested weekly does not apply to employees who work remotely 100% of the time or work exclusively outdoors. But if you have to come to the office periodically? Yes, you'll need to be tested weekly.
Health care workers don't have the testing option under a 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. 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.
What about Exclusions?
Americans with Disabilities Act excuses some people from mandatory vaccination: The ADA requires employers to provide "reasonable accommodations" to workers with medical conditions that would make them unable to get a vaccine. According to the U.S. Department of Health and Human Services, these civil rights protections apply even during emergencies and cannot be waived.
Does the Civil Rights Act apply to people with religious beliefs opposing vaccines: It is currently unclear whether people will be able to decline the COVID vaccine because of their religious beliefs. The rule uses the language "sincerely-held religious beliefs" (page 157), leaving it up to the employer to determine whether their employees' religious believes are sincere enough to merit an exemption.
How Will This Rule Be Enforced?
The companies are expected to enforce the mandate themselves since there are only a couple thousand state and federal OSHA inspectors nationwide. There is no mechanism for checking up on millions of workplaces to verify that they keep vaccination and testing records.
OSHA inspectors will primarily respond to employee complaints and add COVID-related inspections to their to-do list when they are already on-site.
Employers will be subject to fines up to $13,653 per violation for serious violations and ten times that for willful or repeated violations.
Is This Mandate Constitutional?
I have no clue I am only a former wannabe attorney. I can, however, summarize what individuals that are more knowledgeable than myself say.
The most common argument in support of the mandates comes from the 1905 Supreme Court case Jacobson v. Massachusetts.
A Massachusetts town required that its citizens take the smallpox vaccine or pay a $5 fine. Pastor Henning Jacobson refused to vaccinate or pay the fine. The case eventually made its way to the Supreme Court, leading to a 7-2 decision in favor state.
Associate Justice wrote the majority opinion ruling that "individual freedoms, such as not taking the vaccine nor paying the fine, do not give him a free pass to restrict the liberty of others by allowing the virus to spread."
This Supreme Court decision was upheld in 1922, ruling it was within private t public schools' right to exclude unvaccinated students.
There are some challenges with applying Jacobson v. Massachusetts to these new mandates.
The smallpox vaccine inoculates the recipient preventing further spread. Individuals that receive the COVID vaccine can still spread the virus. The COVID vaccine reduces symptoms but does not prevent spread. Also smallpox has a 30% case-fatality rate versus COVID 1%. That does not account for age, weight, or comorbidities.
The ruling never expressly granted the federal government the power to issue vaccine mandates. That power has only ever been granted at a state or municipal level.
Federal powers not expressly given by the constitution are left to the States.
Does OSHA Have Authority to Impose Vaccine Mandates?
Congress did not place vaccines within OSHA's purview. No government administration has the authority to impose a general vaccine mandate. Congress tasked the Department of Health and Human Services with determining safety, efficacy, and appropriate use. The FDA is authorized to determine if vaccines are allowed in interstate commerce, and the CDC recommends who should relieve vaccines.
OSHA was created to promote workplace safety. OSHA inspectors are tasked with ensuring that the workplace is free of hazards such as improperly stored chemicals, poor ventilation, lack of protective equipment, and poor lighting.
This mandate is being issued as an emergency temporary standard which allows OSHA to bypass the public notice and comment period. This is allowed during occasions when it is believed that employees are in "grave danger" or is "necessary" to protect them against danger.
According to this rule, the "grave danger" must come from "exposure to substances or agents determined to be toxic or physically harmful or new hazards."
COVID is not a substance or agent that can be managed or controlled by an employer. It is a virus that replicates in living organisms. Also, what qualifies as a "grave danger" comes into question when the virus has a 99% survivability rate, and a total of four months will have passed since Biden announced his intent to issue the mandate.
What Happens Next?
A small-business advocacy group, The Job Creators Network on Thursday filed a lawsuit to block the mandate. The network represents several small businesses, many of which are family-owned.
On Thursday, The Daily Wire filed a lawsuit against the federal government. The Dhillon Law Group, Inc. and Alliance Defending Freedom filed the legal challenge on behalf of The Daily Wire in the U.S. Court of Appeals for the 6th Circuit.
At least 26 states are opposing the mandate and have filed lawsuits against President Joe Biden's vaccine mandates. They are requesting that the courts determine whether the Biden administration has the authority to enforce such a rule.
How does a Congressional Review happen? After OSHA releases the formal rule ordering the workplace mandate to the Federal Registry, it will be sent to the House of Representatives and the Senate. The Senate Health, Education, Labor, and Pensions Committee will have 20 days to review the order.
Following that, the Republican senators' disapproval can be eligible for a Senate floor vote. Braun will be responsible for scheduling the vote, which is expected to happen in December, Fox News reported.
The Republicans' disapproval is allowed through the Congressional Review Act, which permits Congress to overturn specific regulations and actions put in place by federal agencies.
Sen. Mike Braun of Indianan leads the Congressional Review. So far, Sens. Tommy Tuberville of Alabama, Dan Sullivan of Alaska, Tom Cotton and John Boozman of Arkansas, Rick Scott and Marco Rubio of Florida, James Risch and Mike Crapo of Idaho, Todd Young of Indiana, Joni Ernst and Chuck Grassley of Iowa, Roger Marshall and Jerry Moran of Kansas, Rand Paul of Kentucky, John Kennedy of Louisiana, Cindy Hyde-Smith and Roger Wicker of Mississippi, Josh Hawley of Missouri, Steve Daines of Montana, Ben Sasse and Deb Fischer of Nebraska, Richard Burr and Thom Tillis of North Carolina, John Hoeven and Kevin Cramer of North Dakota, James Lankford and Jim Inhofe of Oklahoma, Pat Toomey of Pennsylvania, Lindsey Graham of South Carolina, John Thune and Mike Rounds of South Dakota, Bill Hagerty and Marsha Blackburn of Tennessee, Ted Cruz and John Cornyn of Texas, Mike Lee of Utah, Shelley Moore Capito of West Virginia, Ron Johnson of Wisconsin, and Cynthia Lummis and John Barrasso of Wyoming have joined with Braun.
What Can You Do?
First, wait; as you can see, some wheels are already in motion, and there may be a stay. Give it some time to get through the courts.
I believe that Biden is doing the same thing he did with the eviction moratoriums. Issuing a mandate knowing it is likely to be struck down but hoping it will prompt enough people to be vaccinated in the meantime, believe that the mandate is inevitable. Essentially I think Biden is running the clock.
That being said. It is time to get loud! And defend medical freedom and your freaking job! Regardless of your vaccination status, do not support the coercion of people into medical treatment. It is wrong.
This means contacting both state and federal government representation and telling them how important it is to you that they protect your freedoms.
If you have a good relationship with your employer, let them know where you stand.
If you are an employer who can financially push back on these mandates, do it. Get ready now.
If you're a small business and are worried that fines like these could put you out of business, coordinate with other small businesses and pull your resources. Be open and honest with your employees, and you may find a way to support each other. Get a game plan together now just in case, be creative.
Suppose you are a business owner with ten employees and can find a way to hire ten more; get ready to do it. Just don't hire more than 99 employees. ;)
Most importantly, contact your senator and demand a congressional review. Let them know how you want them to vote.
The Congressional Review Act (CRA) is a law passed by the United States Congress to allow Congress to repeal agency rules. It gives Congress the power to disapprove and overturn recently enacted federal regulations. A simple majority vote may overturn a regulation in both chambers of Congress and with the signature from the president.
Final Thoughts
If you are thinking, why don't they include natural immunity, or at least they allow an option for testing, in my opinion, you are missing the point. The point is there should not be mandates to begin with. Would you have been ok with these acceptions two years ago? The baseline of what is acceptable is shifting and will continue to change if you allow it.