LIEB BLOG

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Showing posts with label mask. Show all posts
Showing posts with label mask. Show all posts

Thursday, January 13, 2022

Supreme Court Stays OSHA Vaccine or Mask / Test Mandate

In staying the OSHA vaccine mandate, the Supreme Court wrote "that the Secretary lacked authority to impose the mandate."


As the Court explained "permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization." The problem, as set forth by the Supreme Court, was that the mandate was indiscriminately applied. However, and to be CLEAR, the problem was not that it was unconstitutional, violated federalism, or anything else. 


The Supreme Court did not rule that either:

  • The Federal Government cannot issue a nationwide vaccine mandate; or 
  • Biden's Executive Branch cannot issue a nationwide vaccine mandate. 

Instead, it ruled that Congress did not grant OSHA the power to issue a nationwide vaccine mandate for all employers with 100 or more workers. 

In fact, the concurring opinion set it simply, "that power rests with the States and Congress, not OSHA."  


That is not to say OSHA has no power to regulate workplaces with respect to COVID. The Court carefully said OSHA does have power by writing that it was "not [] say[ing] OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible." As such, the Supreme Court invited a new mandate to be issued by OSHA and suggested that it targets COVID researchers or risks associated with crowded / cramped environments. 


As the concurring opinion explained, this case was decided on the Major Questions Doctrine, "'[w]e expect Congress to speak clearly' if it wishes to assign to an executive agency decisions 'of vast economic and political significance.'" Here, Congress did not clearly grant OSHA the power to do make this indiscriminate mandate. 


The fact that they didn't doesn't mean that they can't. Should Congress authorize OSHA now? 




Monday, December 20, 2021

Vaccine Mandates are Here - OSHA's Emergency Temporary Standard is Upheld - If You Don't Like it, Seek a Variance / Accomodation NOW

On 12/17/2021, the Sixth Circuit Court of Appeals upheld the OSHA vaccine mandate for employers with 100 or more employees


Per OSHA, citations for non-compliance will start on January 10, 2022. These citations are going to be huge with penalties for non-compliance set at:

Type of ViolationPenalty
Serious
Other-Than-Serious
Posting Requirements
$13,653 per violation
Failure to Abate$13,653 per day beyond the abatement date
Willful or Repeated$136,532 per violation

To remind employers, and according to the Circuit Court, the Emergency Temporary Standard of 11/5/2021 "requires that employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace." 

If you are questioning why OSHA has the authority to issue this Emergency Temporary Standard, the Circuit Court explained that "OSHA is charged with ensuring worker safety and health 'by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems.'” Plus, it can make an Emergency Temporary Standard if it determines “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 (2) that an “emergency standard is necessary to protect employees from such danger.”

If you are still unconvinced and if you are an employer that doesn't want to follow the Emergency Temporary Standard don't just ignore it. Instead, seek a variance from the standard, which is available if you can demonstrate “that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard.”

If you are an unconvinced employee, seek a reasonable accommodation based upon your sincerely held religious belief or disability.

If you are instead wrongfully relying on the Fifth Circuit's stay of these guidelines, DON'T. The Sixth Circuit is the final word unless the Supreme Court elects to hear the case. The difference between the Circuit Courts' decisions came down to the enabling statute 29 USC 655(c)(1) and OSHA's authority to issue the Emergency Temporary Standard (yes, there were differences about almost everything all the way to the Commerce Clause, but that wasn't the heart of the decisions). Section 655(c)(1) provides that OSHA is required "to issue an emergency standard if necessary to protect workers from a “grave danger” presented by 'exposure to substances or agents determined to be toxic or physically harmful or from new hazards.'" Whereas the Fifth Circuit defined the terms in that phrase ("substances or agents," "toxic or physically harmful," and "grave danger,") narrowly, the Sixth Circuit took a broader holistic view. As such, this entire issue isn't about COVID, vaccines, mandates, workers, liberty, or rights. Instead, this all comes down to the rules of statutory interpretation.