According to National Review, President Biden's vaccine mandate is illegal, unconstitutional, morally wrong, and impractical:
Beyond the serious legal and process issues raised by using a rarely invoked OSHA emergency authority to deputize private businesses to prod 80 million Americans into getting vaccinated, there are serious practical questions. And one of the problems with bypassing the typical regulatory process is that those tasked with implementing these requirements will have no opportunity to weigh in on the potential complications.
Just to think of a few complications, under this order, businesses will now have to set up a system for monitoring who has been vaccinated and who has not. They will also have to facilitate weekly testing for those who choose not to be vaccinated, and keep track of the negative tests. Who pays for the tests? What happens in the time that workers are waiting test results? This remains unclear as of now.
Hmmm. This does not seem like much of an organizational hurdle to me. I think the business community will be able to handle this pretty easily.
In any case, I think a lot of people are misjudging the point of the mandate. After all, its biggest flaw has nothing to do with its legal or bureaucratic aspects. It's the fact that the federal government has no practical way of enforcing it.
But that's OK. What Biden is really doing is giving cover to businesses that wanted to do this anyway. Until now, these businesses risked looking partisan if they mandated vaccines, but now they can simply say that it's the law and they have no choice. It lets them off the hook for making the decision.
And what will companies do to employees who refuse to get vaccinated or tested? I assume every company will decide for itself, but again, I think it's beside the point. What's important is that there are lots of people who will do something merely because it's "officially required." We saw the same thing with the Obamacare mandate: the fine didn't really matter. The mere fact that insurance became legally required was enough to make most people comply, even if they grumbled about it. It may not seem like it sometimes, but Americans really are mostly pretty law-abiding folks.
So that's that. The mandate gives cover to businesses and a quasi-legal mandate to individuals. But what's most important is that the message it sends—we're finally serious about this—should be enough to get a lot more people vaccinated regardless of its eventual legal status.
"the federal government has no practical way of enforcing it"
I imagine enforcement would be like other cases in which employees are illegally forced to work under dangerous conditions: the employees would report the condition to OSHA and OSHA would enforce the regulation.
That still won't enforce it.
Sure. Hero patriot job creators will defy tyrannical government.
Nope. Not even that.
They'll just try to kidnap Gretchen Whitmer again.
No they'll just fire the employee
Maybe we should change the law so that instead of reporting workplace safety violations to OSHA, employees or anybody else get the right to sue the offending business for $10,000.
Corporate personhood > In Utero Fetal Personhood
Putting something in the water to assure docility and suggestibilityhood > freedom
I agree. My experience is that good companies are quite rigorous in following OSHA.
It's a waste of time. Biden looks like nube. Lagging a outbreak that won't even be news in a couple of weeks.
Likely to be number one killer of americans in a couple of weeks. There is already one state where covid is killing more pople than everything else combined. In Florida covid is killing more people than either heart disease or all cancers combined by a 3 to one margin.
If Shadesofgrey and other knee-jerk Trumpies are weakly, tearily demanding Biden NOT EVEN TRY IT and IT WON'T WORK and MUH FREEDOMS, you just know this is absolutely going to work. First, they want COVID to drag Biden down like it did to their savior Trump, so anything Biden did other than resigning would be wrong in their eyes. Second, employers require workers do more onerous things all the time, and if they don't like it ThEy CaN gO WoRk SoMeWhErE eLsE.
Trumpers???? Lolz. Enough Trump crap. Republicans historically don't support vaccine mandates nationally and quite a bit regionally. It was even the South with the "Dixiecrats" who had the strictest vaccination mandates. Not the North.
Your post is a waste. The true anti-vaxxers are left wing naturopathic elite. Who don't like the "industrial" chemicals found in most vaccines or the hap hazard way they go through supply chains. To them, the cure is worse than the disease.
Hmmm, polls (and the words of anti-vaxxers themselves) seem to show the lie of your statement. If you spent any time actually reading genuine lierature on the subject, the greatest ACTUAL, NEVER-GONNA-GET-VAXXED resisters are overwhelmingly white, Evangeical, or Republican and usually all-three. They're not just waiting for more evidence. They sometimes dress their resistance up as being wet-brain new-agey crap about chemicals and homeopathy, but that is only a cover for the pretextual resentment of government public health policy, both because of a hatred for scientific authority and the "socialistic" notion of "public health" or really "public" anything. All of this is rolled together with white-hot resentment of social change (similar to the post-fact freakout over "critical race theory") emblematic of your messiah Trump, the red-faced patron saint of political tantrums about basic facts and beginner level civics.
Nope, stop posting. You wrong. I have read the lit, your wrong. Enough of Donald Trump. If you can't tell Republicans playing politics and anti-vax left wing areas getting measles in California suburbs, your a retard. You simply are another useless limo liberal in the echo chamber.
your a retard
Again with the “your” vs “you’re.” You’d sound more intelligent if you could learn the correct usage of these words.
Thanks, fritzlyounghoff, nicely said and thought out.
Best Wishes, Traveller
Bro, were you living under a rock during the buildup to the Obamacare passage in 2012? It's the same people now that back then were screaming about death panels, perhaps joined now joined by people that have since fallen into the Trumpist sinkhole that is today's GOP. I suppose to the truly willfully ignorant, everything old is new again!
2010, not 2012
Nigh. Obamacare is irrelevant as are Republicans. Using dialectics to cover up left wing naturopathic elitists is embarrassing.
Lighten up, people. After all, only thing Spadesofgrey has going for him (yes, it's a him) is that he's white. I bet if that was the only thing you had going for you you'd be full of trollish resentment that someone was going to take that away from you too.
Republicans are the first ones in line to demand drug testing, though.
Huh.
You do realize that dixiecrats now go by the name 'base of the republican party'.
OSHA has a very simple and very practical way to enforce compliance with any regulation. If they find a violation of the regulation, they issue a citation that carries with it a financial penalty. There is no long delay for a trial, with motions, discovery, and such. They issue the citation, which carries a due-date for payment of the fine.
The company has the right to appeal the citation, attempting to show that the inspector was incorrect in assessing whether the company was in violation of the regulation. Then the OSHA official evaluates the appeal and decides whether the inspector made an error in the citation. (Fat chance of that!) OSHA may also offer to reduce the fine if the company rolls over and just pays. The company is also required to fill out a form describing how the violation was corrected, and how it will be prevented from recurring. Offenders are candidates for re-inspection to ensure that the corrections have been made, and recurrence of the same violation will generally result in escalating size of the fines for repeat offenders.
Now, when the violation cites failure to provide adequate ventilation in an asbestos abatement containment area, there are a lot of possible points of contention--for example, the measure of negative air pressure, the number of times per hour the entire air supply is exchanged, the remaining fiber concentration in the air, etc. The contractor may question how each of those was measured by the inspector, and whether the measurements were transitory or whether they represented an ongoing safety concern, which would affect the seriousness of the violation.
On the other hand, "were you vaccinated" is a yes/no question. And if a worker has not been vaccinated, and is the proximate cause of a violation citation, it's a good bet the inspector will be back next month to check again. So the company will have a strong incentive to self-enforce, lest their next fine be larger.
I think putting this executive order into the OSHA system is a brilliant idea.
No, the problem comes when the company refuses to pay the fine and the government takes it anyway. It won't necessarily be in dollars either.
"On the other hand, 'were you vaccinated' is a yes/no question."
Oh, how I wish *that* were true. It would make my job a lot easier.
- What is acceptable proof of vaccination? Do you need to hang onto that little white card forever? What if you never got one, or lost it, or threw it away? Do you need to get a blood sample and test for antibodies?
- With what vaccine were you vaccinated? Does AstraZeneca count? How about Sinovac?
- How closely did your vaccination follow the guidelines? If your doses were 10 days apart instead of 14, does that count?
- Suppose you've had your first shot and you're waiting on the second, does that get you off the hook? What if you've been "waiting on the second shot" for six months (i.e., you don't ever plan to actually get it)? If that's not okay, what's the cutoff date?
- What if your two shots came from two different vaccines? Is Pfizer + Moderna okay? What about Pfizer + Sinovac?
This is the kind of stuff I deal with at work (very specifically, in fact, I've spent the last year working on systems for tracking and reporting COVID-related data). It's never as simple as you want it to be.
My employer implemented the mandate last week. Twice weekly tests required if no evidence of vaccination. There is a box of testing kits sitting in the main hallway. Of course, few are getting used. My coworkers aren’t generally that crazy.
Also consider that an employee refusing to comply, or later getting caught lying about complying would give the employer grounds for termination. HR always likes to have a valid termination reason on hand in case a disgruntled former employee sues.
Addendum: Please don't feed the trolls. They do not make good faith arguments and live only to feed on the dopamine rush that "triggering" a response gives them. It can be taxing, but it is like riding out a toddler's tantrum.
How about enabling folks to sue the unvaccinated for $10,000
+1!
Given my employer was able to track whether I was overdue or not for computer security or sexual harassment training, I don't think they would have any problem tracking my vaccination status. A friend with a gig with Washington State government merely had to supply a photocopy of their vaccination documentation, which was then subject to verification by a third party working for the state.
"And what will companies do to employees who refuse to get vaccinated or tested?"
Wave Buh-bye!
This is ludicrous. My company has recently mandated vaccines for all employees. Your choices are 1) get vaccinated by a certain deadline; 2) get a religious or medical exemption by that deadline; or 3) agree to be terminated once the deadline is passed. No one expects there to be many exemptions, and those that do get them will have to be masked; socially distance; and be tested twice a week. I think after about a week of that, many will decide their freedums won't be worth the aggravation.
My 55 employee company has tracked who is vaccinated since the guidance allowed vaccinated people to doff masks indoors, it was a practical necessity to follow the guidance. No big deal. Anyone who does not want to wear a mask at work showed their vax certificate to HR.
"What Biden is really doing is giving cover to businesses that wanted to do this anyway."
Exactly right, Kevin. I want to do it anyway, and I want cover! And I am annoyed it only applies to businesses with more than 100 employees. Why the limit? Don;t smaller businesses also need cover?
So why don't I do it anyway, you ask. I don't like to be coercive with people I know, that's what the government is for, that's why they call it government.
It doesn’t apply to smaller companies because federal and state governments fall all over themselves to always exempt small companies from regulations. Because small companies are mom-and-pop operations or something and can barely eek out a profit as it is and yada yada yada. (Somehow small companies deal with all sorts of regulations in other countries and survive… but whatever.)
I got it, Lots of stuff applies to 50+ employees. Why 100 here? This is a really easy thing to comply to.
I'm sure you're right, they read the politics as unfavorable. Maybe they're right, I don't know. But I know I want cover for a vax mandate!
If you're gonna be bold, be bold.
My daughter works at an adult medical day care facility. Employees have to be vaxxed (show the card) or get tested weekly at their own expense, own time. Don't get tested weekly, you don't get paid. Pretty clear.
Yes. I don;t know where the idea that if the employer allows testing in lieu of vaccination it creates a duty to provide the testing.
In states where the state govt keeps good vaccination records and gives proof of vaccination, I would assume this is enforceable as can prove if vaccinated.
But are all states providing anything proving vaccination by an individual? If not, I do not think the federal govt can force states to cooperate . So what happens if no way to really prove vaccination status ?
“But are all states providing anything proving vaccination by an individual?”
Everybody I know scattered across 15-20 states got CDC vax cards to prove their status. I’m pretty sure if you got a vaccine paid for by the feds (which is something like 99+% of all vaccines in the US) then it came with a CDC card.
FWIW, my employer was already doing exactly what Biden mandated for lots of others. And all I had to do was upload a photo of the card to a website they provided. Easy peasy. Sure the card could be faked… but my employer also made a big show of announcing 3 people were fired for submitting fake documents. After all, social security cards can be faked too, but we still have employers requiring those… and actually most employees don’t fake those.
Exactly. People break rules. That doesn't mean we don't need rules.
Most employees are legal us residents and have no reason they would need to fake a social security card . Duh.
But illegal immigrants, who have a reason to fake social security cards, do so routinely of course.
And those who have a reason to fake a vaccination card will of course do so too in large numbers. Although some, especially serious Christians, will refuse to fake anything on principle and just resist the mandate.
Note when I posted questioning how is this going to be enforced in states that do not cooperate, I was meaning in states that ONLY provide that easily faked cdc card . Which, as it is so easily faked, is basically worthless as proof.
In CA where I live , they also have a website where an individual can get proof of vaccination. If employers insist on seeing that and not just the cdc card , that is hard to fake.
If all you need is the cdc card , the rule is toothless for any employer who does not want to require more .
Note someone mentioned their employer just allowing the employee to provide a picture of their card online . Sounds like the employer was just trying to pretend to require vaccination rather than really doing so. Faking the paper card is doable. Faking a picture of the card is even easier.
I got vaxxed fairly early in Oregon, being aged, I didn't pay anything, but no CDC card. Walgreens gave me a slip that was duly signed by the nurses on each day, and some other paperwork including a receipt for a dose of vaccine $0.00, which I copied and laminated, it's hanging out in my glove compartment where no one has ever asked for it.
Can I write the CDC and get a CDC card too, if that's the gold standard of vaccination proof ?
CDC Cards. Simple cardboard, easy to fake I know. But I think everyone in the US got one with their vax. If you know otherwise let us know.
And suppose someone was vaccinated overseas, what is the issue? So far as I have seen everyone gets a record of some type that can present to their employer.
Pretty clear this is a faux mandate. Some big companies probably want cover. We shall know next week.
Just uploaded a picture of my vax card in the company HR portal for the job I just started, same place I had to upload a copy of my marriage cert to get my wife on the insurance. Do people who write this stuff actually work at companies?
It's going to be harder than you think, legally. This post in Reason: https://reason.com/2021/09/10/where-does-biden-get-the-authority-to-mandate-vaccination/
I'd like to see it implemented, yet we know that the real answer to getting people vaccinated is large increases in insurance premiums for those who aren't vaccinated. HMO groups will necessarily force employees.
One glaringly missing part of this strategy is that Biden/Congress has not bothered to add COVID vaccination status to the only other exception to premium rates on ACA marketplace plans, as it does for smokers. IOW, if you're a smoker, insurers on the ACA marketplace can charge you more; that should also apply if you're choosing to go unvaccinated and you don't have a valid reason for doing so.
D" ohrkh,
I was initially more on the fence as to whether it can survive legally but more I read I think it goes down in court. In fact, I wonder whether losing in court is really part of the administration plan. Could be a cynical but effective political strategy. You get the politically uncertain voters who are vaccine resistant not really that upset because it never ends up being used on them - and the less politically connected will forget about it by the time of next election. But if it is struck down , and covid blows up again in winter, they can say " not out fault. We tried but courts would not let us".
And some things seem basically designed to be thrown out of court. Not exempting those with natural immunity just has no justification legally. But exempting usps- how can you justify that . And if necessary for workers, why not require for immigrants entering over the border asking for refugee status ? And Klain retweets that using osha is an end around the law - why would he be that stupid?
And problem seems to be that osha requires a grave threat to the the employees and the requirement has to be something reasonable to ask of employers. Note cannot justify osha action based on helping the overall community- it needs to be a grave threat to the workers. Is there a grave threat due to possible covid exposure from the unvaccinated? To who ? Presumably not to the vaccinated if the vaccine is so good. The only possible grave threat is to the employees who do not want to be vaccinated. Hard to justify .
When companies refuse to implement the vax rule and someone dies, the companies will be sued for negligence.
The private sector will take care of this.
Pretty simple, actually. At my outfit we got an email asking us to submit proof of vaccination, and if we didn’t submit it within two weeks, our access card would be locked.
Types of OSHA violation:
OSHA issues different types of citations, depending on the nature and severity of the violation. Penalties are proposed based on the type of violation.
If you are cited for OSHA violations following an inspection, penalties may vary depending on the type of citation. Note, however, that in settling a penalty, OSHA says it has a policy of reducing penalties for small employers and those acting in good faith.
Willful. A willful violation exists under the OSH Act where an employer has demonstrated either an intentional disregard for the requirements of the Act or plain indifference to employee safety and health. Penalties range from $5,000 to $70,000 per willful violation. If an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a court-imposed fine or by imprisonment for up to 6 months, or both. A fine of up to $250,000 for an individual, or $500,000 for a corporation, may be imposed for a criminal conviction.
Serious. Section 17(k) of the OSH Act provides that "a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." OSHA may propose a penalty of up to $7,000 for each violation.
Other-Than-Serious. This type of violation is cited in situations where the accident/incident or illness that would be most likely to result from a hazardous condition would probably not cause death or serious physical harm, but would have a direct and immediate relationship to the safety and health of employees. OSHA may impose a penalty of up to $7,000 for each violation.
De Minimis. De minimis conditions are those where an employer has implemented a measure different from one specified in a standard, that has no direct or immediate relationship to safety or health. These conditions do not result in citations or penalties.
Failure to Abate. A failure to abate violation exists when a previously cited hazardous condition, practice or non-complying equipment has not been brought into compliance since the prior inspection (i.e., the violation remains continuously uncorrected) and is discovered at a later inspection. If, however, the violation was corrected, but later reoccurs, the subsequent occurrence is a repeated violation. OSHA may impose a penalty of up to $7,000 per day for each violation.
Repeated. An employer may be cited for a repeated violation if that employer has been cited previously, within the last five years, for the same or a substantially similar condition or hazard and the citation has become a final order of the Occupational Safety and Health Review Commission (OSHRC). A citation may become a final order by operation of law when an employer does not contest the citation, or pursuant to court decision or settlement. Repeated violations can bring a civil penalty of up to $70,000 for each violation.
***************************************************
The serious citation does not require a fatality it only requires serious injury or in this case illnesses which can be defined by tome away from work.
THIS is where it gets dicey. Lets say you get COVID and now anyone around you has to quarantine. THAT makes it serious due to time away from work.
The threat to workers has to be recognized - COVID IS
The threat has to be abated or fixed in a reasonable way - COVID IS (vaccine)
When the meat packers closed shop early in the pandemic they laid the ground work for this scenario. Their employees work elbow to elbow. They required face mask and vaccines early (and face masks were worn anyway). They set the stage
The problem for employers is fixing the hazard. If they don't require vaccines or cannot protect the un-vaccinated they are at risk for repeat violations which adds a multiplier to the initial penalty. Do it enough times and those citation become willful
There are of course several ways around this but the best one would be to make COVID a compensable illness - meaning the employers workman's compensation carrier would be LIABLE to pay employees for the time off (usually at 66% of full pay) and all medical expenses associated with that illness.
The INSURANCE industry would tell employers get vaccines to your people OR pay the price through increased premiums
Insurance gave us seat belts
Insurance started the no smoking movement
Insurance started the OSHA movement which continues to this day.
Just follow the money
So if the regulatory approach fails (which I doubt it will) then just change the law to say its compensable.
What will be interesting to see will be if the courts will let OSHA get the vaccine records because that law (HIPPA) is enforced by HHS - OSHA does have jurisdiction over their employees for health and safety but in this case the information would have to be kept secret from everyone. OSHA would not be able to disclose the names of employees interviewed.........which is unique.
You only have to point to any newspaper to show un-vaccinated people at getting hospitalized and dying from COVID more so than the vaccinated. That PROVES the hazard exists - which is why the employer vaccine mandate will last because they know it affects their business.
" businesses will now have to set up a system for monitoring who has been vaccinated and who has not. "
You have to put this in the context of HIPAA.
Now, I think HIPAA and everything surrounding it are truly catastrophic bullshit, a current version of the 16th C laws against dissection, that dramatically curtail our ability to investigate and control many medical phenomena.
BUT HIPAA is the law of the land, and it is law that many of the most Woke think is important.
So he is not wrong in pointing out that there's a severe disconnect here beween
"oh who cares if businesses are asking random people to show this particular medical information" and "preserving medical privacy is the most important thing in the world".
We've had 18 months of non-existent track-and trace because of this privacy hysteria that crippled any meaningful attempt at tracing; now we're supposed to accept a "just kidding, we don't really care that much about medical privacy after all"?
For those of you whose political theory boils down to "my way or the highway, screw the rule of law, screw compromise, I just want what I want even when it doesn't make sense" (ie 99% of you) this may be fine.
But for those of us trying to run and live in a world based on principles, this is a pretty big tell. Basically you have done the exact same thing that the Republicans did 20 yrs ago -- 50 years of complaining that "We are different from the Russians because we don't torture and and extradite" abandoned in a year as soon as you got scared.
In other words, don't give me some cock-and-bull story about how Apple looking for child porn on your phone is a terrible idea because it will lead to X, Y, and Z. You've already demonstrated you don't care about principle and are happy to jump to X, Y, and Z as soon as you get scared.
So if it's not principles, then why exactly are you so scared about CSAM?
HIPAA does not prevent anyone from asking your vaccination status. You are not compelled to reply (and that's freedom of speech, not HIPAA), but of course your employer may then choose to treat you as unvaccinated.
https://www.health.harvard.edu/blog/does-hipaa-prohibit-questions-about-vaccination-202108192575
This is precisely the sort of dishonest pretending to misunderstand the point that is why casuistry is so despised.
Once again, there is a history here. If the issue is just "You can ask the question, and the other person can refuse to answer" then how would you feel if employers asked employees "have you had an abortion"?
("We take human life seriously here. We don't want unvaccinated employees AND we don't want employees who are cavalier about embryo life")
How about "do you go to raves?" ("We take contagion seriously here, and our experience agrees with models that treat the spread of drug use through a community as similar to the spread of infectious disease")
The issue is not "my way or the highway" it is what are the META-rules you are playing by.
Why is the USPS exempt from these mandates?
They primarily work outside. Indoors at the post office they stand behind (in my case here in Wilmington NC) Plexiglas barriers.
They are also alone in their delivery trucks.
In rural areas they put mail in a mailbox at the street. There is little to no public interaction by the carriers
Those are not good reasons for the distinction between usps and private employers over 100 lives.
First, plexiglass barriers are generally worthless. Studies have shown they may actually make things worse by reducing airflow and they do not stop aerosolized virus . And the osha requirement has to be related to risks to other employees, not contact with the public. And , to the extent that Plexiglas barriers do work, they are increasing worker to worker spread as they are all together behind the plexiglass.
Exempting workers who work outdoors with little contact with other workers ( or the public) may make good sense . But did they exempt only those workers at usps? No it was all. And did they exempt outside workers in private companies or those who work only from home ? No.
The fact they exempted usps will be used in court to strike the osha requirement down.
United Airlines just announced that those providing medical reasons they cannot get vaccinated will be put on paid leave (not a trivial matter at a time of labor shortages, for United). Those who present religious or personal reasons will be put on unpaid leave.
I feel much better about choosing United flights, once I get back to traveling, so I suspect the "message" part of this is playing a big role in United's policy announcement... and that policy announcement, in turn, is enabled by the new OSHA guidelines.
Good work, President Biden. Those who feel that rational and generally applicable public health measures (approved vaccines, masking in public) are "impositions on FREEDOM" or "religious coercion" are welcome to go on unpaid leave and to quarantine, by me.
That does give an incentive for a united worker to find a doctor to say there is a medical reason and get a nice paid vacation.
And those who present a personal objection can get time off - not paid by united but can get unemployment so partially paid by everyone else. Some may go for that .
In the REAL world vaccine mandates are already in place and working in many large employer situations. It's come work for us, prove you're vaccinated or not.
It's that simple
Can't pass a drug screen? Don't come work for us
Can't pass a back ground check? Don't work for us.
We have multiple rules that invade everyone's privacy when it comes to work. We allow employers to do this. The ONLY burden will be proof of vaccination. That should be easily fixed. You don't give out a shot without someone taking your name, address or a host of other potential information down. If ANYONE did not do that they'd open themselves up to all sorts of litigation should the person have a bad reaction to the shot(s).
On the anniversary of 9-11 it's good that we are reminded of our loss of privacy as a result of that attack - as that loss of privacy is still ongoing. Yes, you can voluntarily give your vaccine status in order to "get" a job or make a point with friends. The ONLY people needing to keep it secret seem to be politicians who don't want to get ill but can't afford to disturb their base. They get all wishy washy and HIPPA centric trying to twist themselves into knots to not have to give an answer
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