US Attorney General: Mickey Mouse with a gun; our nation has been infiltrated by soccer mom terrorists
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There is still no “hundred-employee” vaccine mandate
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First,
the broad strokes. Just over a month ago, Biden directed the Department
of Labor and OSHA to develop the details of a COVID vaccine mandate for
all US companies with 100 or more employees.
It
appears (but it is not certain) that this mandate will allow several
escape hatches: medical and religious exemptions, and weekly testing as a
substitute for vaccination.
If there are exemptions, we don’t know under what terms they’ll be permitted.
The Department of Labor has not yet issued the regulations framing and detailing this mandate.
Indeed,
as the law firm Eckert Seamans states on its website: “The President
did not give a deadline or timeframe for the New COVID ETS [Emergency
Temporary Standard], but it is likely to take weeks or months to be
issued. Though it is a simple directive on its face, there are complex
issues that OSHA will have to work out in preparing the ETS. Moreover,
even though it is an emergency standard, OSHA still must build a basis
for meeting the statutory criteria for emergency standards, and that
takes time.”
“Recall
that in January the President directed OSHA to issue a COVID ETS…and he
imposed a March 15 deadline for action on that. However, OSHA did not
issue the First COVID ETS until June, and even then, it applied only to
healthcare settings…”
“However,
if the New COVID ETS toes the line the President has drawn, it will be
considerably broader and certainly more heavy handed, so it is more
likely to draw court challenges from employers and others who already
are declaring their opposition to such a broad mandate---and that could
mean further delay.”
So
we don’t yet have a set of rules for this 100-employee mandate, a month
after Biden made his speech, and perhaps we won’t have those rules for
some time.
Therefore, the question is: Right now, does the mandate exist?
The
Eckert Seamans law firm has an answer: “The President’s statement [on
September 9] itself imposes no immediate legal obligations or penalties
as far as private employers under the OSH Act. It is simply an
announcement that he has directed OSHA to promulgate the New COVID ETS,
and provides a few details of what he expects it to contain.”
There is no mandate now. There is only an announcement that there will be a mandate.
There will be a mandate when the Department of Labor issues its regulations.
If
an employer went to court now, to challenge the mandate, the judge
(assuming competency and honesty) would say, “Your challenge has no
merit, because there is no mandate yet.”
And
if there is no mandate yet, no employer with 100 or more employees is
under obligation to order his employees to take the vaccine.
Note:
I’m not talking about the Biden order that all federal employees and
contractors must be vaccinated. That is a different situation.
Right
now, all employers with 100 or more employees who are ordering their
employees to take the vaccine are doing so voluntarily.
If
they are ordering their employees to take the vaccine “because we have
to, because the federal government is ordering it,” they are making a
factually incorrect statement.
This
possibly opens the door to an employee filing an action against his
employer: “I was told to take the vaccine under false pretenses…”
I’m not saying such a charge would stand up in court, but it’s worth thinking about.
On September 10, Biden Press Secretary Jen Psaki took questions from reporters. She couched the 100-employee mandate this way:
“So,
Congress passed a law in 1970 — the Occupational Safety and Health
Act. And the reason the Department of Labor and OSHA is able to take the
strong step to protect Americans from COVID [with the new mandate] is
that Congress passed that law. Yesterday’s announcement by the
Department of Labor is proceeding under that law. And the law basically
requires the Department of Labor take action when it finds grave risk to
workers. And certainly a pandemic that killed more than 600,000 people
qualifies as ‘grave risk to workers’.”
“And
so, if the Secretary determines workers are in grave danger, he has an
obligation to issue an emergency temporary standard [ETS]. That’s
exactly what he did.”
I
believe this is incorrect. Psaki is implying the 100-employee mandate
already exists. Her words can certainly be taken that way. But the
mandate doesn’t yet exist, because the Department of Labor hasn’t issued
the regulations which CONSTITUTE the mandate.
Again:
ALL EMPLOYERS WITH 100 OR MORE EMPLOYEES WHO ARE ORDERING THEIR
EMPLOYEES TO TAKE THE VACCINE, OR ARE FIRING THOSE WHO REFUSE, ARE DOING
SO VOLUNTARILY.
They’re
caving in. They’re issuing orders to their employees before the
regulations are issued, and before the many legal challenges against
those regulations pile up---challenges which, if they chose to, they
could help spearhead.
~~~
(Follow me on Gab at @jonrappoport)
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