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Showing posts with label vaccine mandate. Show all posts
Showing posts with label vaccine mandate. Show all posts

Thursday, January 13, 2022

Supreme Court Permits Biden's Healthcare Vaccine Mandate

All healthcare facilities that receive Medicare and/or Medicaid funding must ensure that their covered saff are vaccinated against COVID after the Supreme Court stayed injunctions that were preventing the implementation of the Department of Health and Human Services (DHHS) Interim Final Rule.


To be clear, the rule does not cover those healthcare workers with medical and religious exemptions and those who telework full-time. 


In permitting the mandate to be implemented, the Supreme Court found exactly what it said was lacking in the OSHA vaccine mandate case, to wit: specific language in a statute authorizing Biden's Executive Branch to impose a mandate. 


According to the Court, the core mission of the Department of Health and Human Services "is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety." In fact, the Court found that “infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections” are precisely within the Department's charge. 


In addressing its divergent opinions, between OSHA and Healthcare, the Supreme Court explained:


The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.



 

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. 



Thursday, December 16, 2021

NYC Releases New COVID-19 Vaccine Requirements for all Private Sector Workers

NYC released new vaccine requirements, by Order of the Commissioner of Health and Mental Hygiene, mandating all private sector workers to be vaccinated by December 27th with at least 1 dose of any COVID-19 vaccine. A 2nd dose is required 45 days after a worker shows proof of vaccination for the Pfizer or Moderna vaccines.


The City’s new Order is its strictest yet. Businesses are prevented from allowing unvaccinated workers to enter the workplace. Further, businesses must verify and keep a record of each worker’s proof of vaccination by December 27th. Records may consist of physical copies of worker’s proof of vaccination; a business-created paper or electronic record displaying worker’s name, vaccination status, and date by which they can provide proof of second vaccination; or a daily record verifying that the business checked the worker’s vaccination status before the worker entered the workplace. Businesses should be prepared to make their records available for inspection and need to set their protocol ASAP so that they comply.


The Order includes a path for vaccination exceptions if a worker seeks a reasonable accommodation for medical or religious reasons. If such an accommodation is sought, employers must record the reasonable accommodations, and supporting documentation relevant thereto, for each worker under 1 of the above record keeping options. Moreover, NYC employers must familiarize themselves with the Cooperative Dialogue or they will face failure-to-accommodate lawsuits by the drove. 


Also of note is that proof of vaccination applies to both employees and non-employee workers such as independent contractors.


The mandate does not apply to people who work alone; people who enter a workplace briefly for a limited purpose; and Non-NYC resident performing artists, college or professional athletes, and anyone who accompanies them.


NYC provides a detailed memo explaining how businesses can properly comply with the guidelines.  Businesses are subject to fines of $1,000 for non-compliance, and escalating penalties thereafter if violations persist. NYC provides a link for those who wish to report fake proof of vaccination records in order to maintain compliance.



Friday, December 10, 2021

COVID-19 Vaccine Mandate for Federal Contractors Stayed by Federal Judge.

The ruling by a Georgia federal judge does not prevent employers or businesses from enforcing vaccine mandates. Rather, the Court issued a nationwide stay of President Biden's Executive Order which required all federal contractors to be fully vaccinated by January 18, 2021.


While the Judge expressed his understanding of the dangers of this public health crisis, he, nevertheless, issued the stay because he believed the Executive Order exceeds the President's authority. The Court further reasoned that the potential harm from enforcing a vaccine mandate on federal contractors (causing many federal contractors to breach their contracts when their employees refuse to get vaccinated) outweighs the harm to public health if the contractors are not vaccinated.


Biden will likely appeal this ruling to end the stay. Do you agree with the Judge's reasoning? Would this Executive Order result in a federal contractor employment crisis? Let us know in the comments below.



We'll be sure to keep you updated as this legal fight continues!


Monday, December 06, 2021

New NYC COVID-19 Vaccine Mandate will Require All Private-Sector Workers to be Vaccinated

New York City Mayor de Blasio announced, through the media, new vaccine mandate requirements for New York City’s five boroughs.  Starting December 27th all private-sector workers will be required to show proof of vaccination. This is the first vaccine mandate in the nation that applies to all private sector workers. Approximately 184,000 businesses will be affected. Mayor de Blasio called the new measures a “preemptive strike” in facing the new challenges associated with the Omicron variant, the colder weather affecting the delta variant, and holiday gatherings.


Additional measures include, requiring children ages 5-11 to show proof of one vaccine dose for indoor dining, fitness, and entertainment and requiring individuals 12 and older to show proof of two vaccine doses unless they received the Johnson & Johnson single vaccine dose. These measures are effective as of December 14th.


Mayor de Blasio called the measures universal in their enforcement and is confident that this expansion to “Key to NYC” Program will overcome any legal challenge.


Mayor de Blasio said the city’s health commissioner has put these new vaccine requirements into place. However, New York City’s Department of Health has not yet published the order detailing the requirements of the new mandate.


Issues involving the enforcement of these private-sector vaccine mandates will likely be something mayor-elect Eric Adams will have to deal with next year.


Second Circuit Holds that Requiring Teachers to Submit a Letter from a Religious Leader in Support of a Request for a Reasonable Accommodation is Unconstitutional

The 15 public school teachers who challenged New York City’s COVID-19 vaccine mandate live to fight another day in court.


The teachers have refused to comply with the City’s mandate arguing that compliance with the COVID-19 vaccine mandate is a violation of their religious rights under the First Amendment’s free exercise clause.


The Court determined that the reasonable accommodation standards in the City's vaccine mandate was unconstitutional as applied to the 15 teachers because the mandate required employees who requested a religious exemption to the COVID-19 vaccine mandate to submit a letter from a religious leader confirming the validity of the employee's religious beliefs. If the religious leader had well-documented public comments in support of taking the vaccine, the request for exemptions would be denied.


The Court reasoned as follows:


Denying an individual a religious accommodation based on someone else's publicly expressed religious views-even the leader of her faith-runs afoul of the Supreme Court's teaching that "[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds."


However, the Court declined to extend protections against the mandate to all teachers stating that the mandate itself was "a reasonable exercise of the state's power to act to protect the public health."


Based on this decision, employers should only consider the employee's specific religious beliefs (in determining whether they are "sincerely held") when processing a reasonable accommodation request. Someone else's belief  - even if it is a religious leader - is irrelevant. 




Tuesday, October 19, 2021

Attorney Andrew Lieb Provides Legal Analysis on NY's Vaccine Mandate For School Staff and State Workers on PIX 11 News NY

Attorney Andrew Lieb interviewed on PIX11 NY 10pm news on New Jersey vaccine mandate for school staff and state workers.





Thursday, September 30, 2021

NYC School Employees Go to Justice Sotomayor of the Supreme Court for Relief - Should They Get It?

In their best written papers to date, NYC school employees argued to the Supreme Court that they need a stay of the October 1, 2021 deadline to get vaccinated. 


They argue that the vaccination order prevents them from lawfully pursuing their occupation, which is a fundamental Due Process right. They claim that their alternative options of private school teaching, adult or continuing education teaching, or private tutoring are not pursuing their occupations completely. Nonetheless, they fail to address whether taking "their certifications and seek[ing] employment in any other public school system... in the State," would be pursuing their occupations completely, as NYC had argued before the Second Circuit. 


Regardless, the issue of whether the employees can still pursue their profession is where the case is likely to be decided. In their opposition before the Second Circuit, the City had argued and emphasized that Due Process protection is only afforded if "a plaintiff is completely prohibited from engaging in his or her chosen profession." However, the school employees now argue that "a violation of one’s fundamental right to pursue an occupation exists and gives rise to a due process claim where there is less than a complete inability to practice one’s profession." Which one is it? Who is right? 


What do you think the law should be? 


The other argument advanced by the school employees is that the vaccination order should have given them an option to opt out of vaccination for weekly testing because school staff should be treated equally to firefighters and police officers who have that option. While this seems like a good argument in an initial read of the papers, the school employees' argument that firefighters and police officers present a greater risk to spread COVID because they have contact with the public as opposed to school children who have less severe COVID fails the smell test when it's considered that adults can be vaccinated and those under 12 years of age cannot. However, we will see. 




Thursday, September 16, 2021

Podcast | Legal Breakdown and Analysis of Biden's Employment Vaccine Mandate

 The Lieb Cast answers the following questions about Biden's employment vaccine mandate in the latest podcast: 


  1. Can Biden / OSHA issue an Executive Order / Regulation mandating employment vaccines? 
  2. Can the Federal Congress issue a statute mandating employment vaccines or is that a state's rights issue?
  3. What is the precedent for an individual state to issue a vaccine mandate and would it be upheld?
  4. Does it matter if an individual state's Governor or Legislature issued an employment vaccine mandate for enforceability?
  5. How does a sincerely held religious belief against vaccines avoid employment vaccine mandates?
  6. How can employers refuse an accommodation who has a disability or sincerely held belief and requests to avoid an employment vaccine mandate?

Plus, we discuss brisket, ice cream, 9/11, Rosh Hashanah, Yom Kippur, horse dewormers, and most importantly, we break down the hiring / staffing issues faced by employers everywhere.


Link to Podcast: https://www.listentolieb.com/876124/9172946-legal-breakdown-and-analysis-of-biden-s-employment-vaccine-mandate