Covid Vaccine Mandate

ffemt8978

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President Biden has issued an executive order that requires private employers with more than 100 employees to mandate their employees get vaccinated or tested weekly, or pay a $14,000 fine for each violation.

The court battle that results from this could have some far reaching effects, including some not related to the vaccine.

Superficially, it would appear that having OSHA actually mandate the vaccine would work, but there are some concerns that this may be overstepping the authority of OSHA, the Administrative Procedures Act and even Executive Orders. There appears to be a strong Constitutional argument that this mandate should actually come from Congress in the form of an actual law instead if a federal rule.

Edit: fix link to article
 
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DrParasite

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I predict many lawsuits against the federal government over this order, one that they will lose if and when the case makes it to the SCOTUS

There have already been lawsuits filed at the state level

and using OSHA as the enforcement arm against businesses... it's absolutely an overreach from the executive branch of the government

As currently stands, many lawsuits have been filed against indoor mask mandates:

I am 100% pro-vaccine, and think everyone (particularly healthcare workers) should get it, but I also understand that you have the right to make stupid decisions about your personal health. So if you (as the unvaccinated) don't want to get the shot, that's on you; but don't expect any sympathy from me if and when you contract this disease, and feel like you get run over by a Mack truck for 2 weeks while your body fights it off.
 

Jim37F

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What sort of authority is the President using for this? Last I remember from my Civics Merit Badge the President can't just up and unilaterally make new laws or fines out of the blue, there's an entire Legislative Branch in charge of that....
 

GMCmedic

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What sort of authority is the President using for this? Last I remember from my Civics Merit Badge the President can't just up and unilaterally make new laws or fines out of the blue, there's an entire Legislative Branch in charge of that....
The federal rule making process.


It's why most conservatives hate the ATF. It gives Federal agencies the autonomy to change rules or interpretation of rules at the whim of the President.

This covers OSHA, the medicare/medicaid rule is likely going to piggyback off existing rules.
 

CCCSD

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What sort of authority is the President using for this? Last I remember from my Civics Merit Badge the President can't just up and unilaterally make new laws or fines out of the blue, there's an entire Legislative Branch in charge of that....
He went there long ago and no one will check him.
 

Carlos Danger

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They will find "legal" ways to get OSHA and perhaps other federal agencies to enforce this under existing authority. All they have to do is craft a rationale for why this mandate falls under authority that is already held by OSHA. I imagine a challenge will eventually reach SCOTUS, but the alphabet soup agencies have a lot of authority and the laws surrounding that (the authority that congress has granted federal agencies) are very complex and unless the rule in question flagrantly violates other federal law, SCOTUS traditionally will say something to the effect of "this is a legislative issue, not a judicial one".

It is a Brave New World, for sure.
 

CCCSD

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They will find "legal" ways to get OSHA and perhaps other federal agencies to enforce this under existing authority. All they have to do is craft a rationale for why this mandate falls under authority that is already held by OSHA. I imagine a challenge will eventually reach SCOTUS, but the alphabet soup agencies have a lot of authority and the laws surrounding that (the authority that congress has granted federal agencies) are very complex and unless the rule in question flagrantly violates other federal law, SCOTUS traditionally will say something to the effect of "this is a legislative issue, not a judicial one".

It is a Brave New World, for sure.
I believe the Australian CMO referred to it as “The New World Order.”
 
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ffemt8978

ffemt8978

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When I checked earlier today, the published executive order was only for federal employees.
The actual Executive Order specified federal employees, but the Covid Plan on the White House webpage states employers with more than 100 employees to require vaccinations or testing. This will be implemented by a forthcoming rule from OSHA.

 
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ffemt8978

ffemt8978

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They will find "legal" ways to get OSHA and perhaps other federal agencies to enforce this under existing authority. All they have to do is craft a rationale for why this mandate falls under authority that is already held by OSHA. I imagine a challenge will eventually reach SCOTUS, but the alphabet soup agencies have a lot of authority and the laws surrounding that (the authority that congress has granted federal agencies) are very complex and unless the rule in question flagrantly violates other federal law, SCOTUS traditionally will say something to the effect of "this is a legislative issue, not a judicial one".

It is a Brave New World, for sure.
Given the way the ending of the eviction moratorium was ignored in an effort to keep it in place longer, it wouldn't surprise me if unfavorable court rulings were also ignored.
 

FiremanMike

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The actual Executive Order specified federal employees, but the Covid Plan on the White House webpage states employers with more than 100 employees to require vaccinations or testing. This will be implemented by a forthcoming rule from OSHA.

Anyone here working for a municipal department, has your agency weighed in yet as to whether this applies to us?

We are ambiguously left out of the health care provider section, but we may fall under the 100+ employees section..
 

GMCmedic

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Anyone here working for a municipal department, has your agency weighed in yet as to whether this applies to us?

We are ambiguously left out of the health care provider section, but we may fall under the 100+ employees section..

Being a rule change by an alphabet agency, there will be a comment period, I don't think the specifics will be available till October.
 

Akulahawk

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Unless they can find a way to get this "approved" through an already existing channel, it will have to go through the full process, which would include a comment period. If they don't, then the courts can slap down any regulation that didn't follow all the appropriate steps.
 

Generic

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This will likely go to the Supreme Court. There is precedence where the Supreme Court ruled that the government can enforce mandatory vaccinations.

There was a smallpox out outbreak in the early 1900s and 11 states had compulsory vaccination laws. It went to the Supreme Court and the Justices ruled in favor of the states. Subsequent lawsuits also favored the government in other cases. With the Supreme Court leaning conservative now, who knows if they will be in favor of the government.

https://en.wikipedia.org/wiki/Jacobson_v._Massachusetts
Justice John Marshall Harlan delivered the decision for a 7–2 majority that the Massachusetts law did not violate the Fourteenth Amendment. The Court held that "in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand" and that "[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others."
 
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ffemt8978

ffemt8978

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This will likely go to the Supreme Court. There is precedence where the Supreme Court ruled that the government can enforce mandatory vaccinations.

There was a smallpox out outbreak in the early 1900s and 11 states had compulsory vaccination laws. It went to the Supreme Court and the Justices ruled in favor of the states. Subsequent lawsuits also favored the government in other cases. With the Supreme Court leaning conservative now, who knows if they will be in favor of the government.

https://en.wikipedia.org/wiki/Jacobson_v._Massachusetts

Except that case did not pertain to a Presidential Executive Order mandating a vaccine, it dealt with state public health departments mandating vaccines. This case will likely focus on how the government implements its mandate since it has already been decided the government can implement mandate (unless the Supreme Court reverses its precedent).

The government would be on a much stronger footing if Congress actually passed a law making the vaccine mandatory, but the option chosen at this point is to have OSHA draft a new rule via the federal rule making process. That means it must follow the Administrative Procedures Act, and include things like a public comment period and be within the purview of the agency drafting the rules (unless this administration decides to try a repeat of the Title IX Dear Colleague letter).

One question I have is if OSHA has the legal authority to mandate something in the workplace that extends beyond the workplace. For example, OSHA can certainly mandate no drug or alcohol usage at work, but it is beyond their purview to mandate no drugs or alcohol away from work (yes, I'm well aware that tests given at work will show positive results from off duty time usage).

This case is certainly not a slam dunk for either side, and will have ramifications well beyond COVID.
 

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