That OSHA Mandate

 

So, my employer sent out its request for each of us to let it know if we are vaccinated, else be forced to submit to weekly COVID-19 tests. Even those of us who are 100% remote will need to at least let it know that we are vaccinated. If we say no or choose not to disclose, there is no repercussion except that if we go into the office (for a meeting, let’s say), then we have to provide a negative COVID-19 test from within seven days. Oh, and you can’t just show the stick, you have to go to a testing center and get the proof printed with the time/date stamp.

This mandate was thrown out by the 5th U.S. Circuit Court of Appeals, which said it needed to be reviewed in court to ensure it’s constitutional, and this happened (but in the 6th Circuit). Now, there will be an appeal to the Supreme Court (SCOTUS), and I just cannot wait for the mental gymnastics by Chief Justice John Roberts (he will never let conservatives down)(tm), who will do his darndest to justify how the president (as long as it’s not former President Donald Trump) can do whatever he wants to with executive power because pandemic (but really because Chief Justice John Roberts (he will never let conservatives down)(tm) really, really wants to be liked by the cool kids in Washington, D.C., and they have never liked him).

Honestly, I have zero faith that SCOTUS will decide that the mandate isn’t allowable on constitutional grounds (meaning that the president or the federal government cannot actually mandate that private individuals do specific medical procedures). I mean, honestly, can you think of where this could go eventually? If the federal government can mandate that you get vaccinated, what else can it mandate that you do related to health? Could it mandate that you get 30 minutes of exercise every day? Could it mandate that male infants get circumcised at birth (to control HPV and cervical cancer)? Could it mandate that men over 50 get castrated to prevent testicular and prostate cancers? Could it mandate that when a family has had two kids that all further pregnancies must be aborted to control population and reduce greenhouse emissions? Sure, it’s because we are going to enter a winter of severe illness and death, but climate change is an existential threat that threatens the entire world, so wouldn’t limiting families to just two children be best?

Published in Healthcare
Ricochet editors have scheduled this post to be promoted to the Main Feed at 7:15AM (PT) on December 23rd, 2021.

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  1. RushBabe49 Thatcher
    RushBabe49
    @RushBabe49

    I got the same kind of letter from my employer, a “staffing company”/temp agency.  I sent my supervisor an email detailing my reasons for not complying with the order (case held up in court, and I refuse to upload any sensitive medical information via email or online).  I have heard nothing back so far, but am prepared to quit or be fired if necessary.  This is the hill I choose to die on, if necessary. [I admit that it’s not a big deal for me, as I came out of retirement for the job, and would happily go back into retirement if needed]

    • #1
  2. The Reticulator Member
    The Reticulator
    @TheReticulator

    I hope there are people who chose to get vaccinated and who refuse to inform their employers. 

    • #2
  3. philo Member
    philo
    @philo

    The case that I am familiar with now touts greater than 98% compliance (i.e., vaccinated + approved waivers/exemptions). I have no access to real data but I get the impression that many just caved and got the shots. (The bad faith EO worked quite well regardless of how the courts rule.) But it also became clear mid-way through the process that the exemption requests…primarily on religious grounds…were being met with a very active rubber stamp. Thousands of such exemptions were approved. What a joke: the focus on this definition of compliance puts the lie to the importance of being vaccinated. The company gives much lip service to the CDC party line but then surrounds the vaccinated work force with thousands of approved unvaccinated people. They advertised how their team was working with the White House on “compliance” all while letting it be known that all an employee had to do was tell them it was for religious reasons, whether true or not, and it would be approved.  (Trust? Respect? Integrity? Pride? … No, just tell us what we want to hear all will be OK.) I suspect that what they think was a clever little dance through this mine field will do great damage to the trust and respect of the workforce for their employer. But I could be wrong…

     

    • #3
  4. James Salerno Inactive
    James Salerno
    @JamesSalerno

    Hell, I just quit a job over a mask mandate. Quitting another over a vaccine mandate is just another day at the office, or out of the office…

    • #4
  5. John Park Member
    John Park
    @jpark

    That OSHA mandate is set for consideration in the Supreme Court on January 7, 2022.

    • #5
  6. Raxxalan Member
    Raxxalan
    @Raxxalan

    The saddest part is if the just follow precedent and the law this would not be a mess.  States have the ability to create a vaccine mandate because they have a generalized police power.  The federal government doesn’t have that ability.  If they get the law right then the OSHA mandate is clearly unconstitutional.  Unfortunately the New York state mandates, and the mandates on the military likely are constitutional, but stupid.  It would be a small victory at least.  I don’t understand how this isn’t a clear HIPAA violation.   I am not sure how an executive agency can just override a piece of legislation because they feel like it, but apparently we don’t live in a country of laws anymore merely one of bureaucratic edicts. 

    • #6
  7. Stad Coolidge
    Stad
    @Stad

    Dbroussa: I mean, honestly, can you think of where this could go eventually?

    I really thought Biden was going to mandate all people on Medicare and Medicaid be vaccinated or lose the benefit . . .

    • #7
  8. Richard Easton Coolidge
    Richard Easton
    @RichardEaston

    Stad (View Comment):

    Dbroussa: I mean, honestly, can you think of where this could go eventually?

    I really thought Biden was going to mandate all people on Medicare and Medicaid be vaccinated or lose the benefit . . .

    That would get too many people angry with him. It’s not about the science; it’s how much they can get away with without ticking off too many people.

    • #8
  9. Seawriter Contributor
    Seawriter
    @Seawriter

    What Rushbabe and James Salarno said goes for me, too. I have refused to give my vaccination status. If they fire me? See ya guys. 

    • #9
  10. Boney Cole Member
    Boney Cole
    @BoneyCole

    How can they mandate an experimental vaccine?  Aren’t there laws about that? 

    • #10
  11. philo Member
    philo
    @philo

    Boney Cole (View Comment):

    How can they mandate an experimental vaccine? Aren’t there laws about that?

    Just hold on.  The good, conservative, Chief Justice Roberts will explain it to all of us very soon. 

    • #11
  12. Raxxalan Member
    Raxxalan
    @Raxxalan

    Boney Cole (View Comment):

    How can they mandate an experimental vaccine? Aren’t there laws about that?

    It isn’t still under an emergency use authorization for most working aged Americans, so technically no longer an experimental vaccine according to the law I would guess.

    • #12
  13. Raxxalan Member
    Raxxalan
    @Raxxalan

    Actually in thinking about It I am cautiously optimistic.  They agreed to hear the case which means there are likely 4 votes to overturn the 6th circuit an educated guess would be Alito, Thomas, Gorsuch, and apparently Kavanaugh.  That leaves Barrett and Roberts in the unknown category and the 3 liberals against.  If they had a solid 5 for the mandate the easier path would be for them to not take the case which is what I am sure Roberts would have preferred.  Barrett seems so far to follow Kavanaugh so that may be a good sign.  Also Kavanaugh is skeptical of Chevron so that is a good sign as well.  Of course this is all reading the tea leaves and thinking back on the lessons learned from listening to Law Talk.

    • #13
  14. cdor Member
    cdor
    @cdor

    Raxxalan (View Comment):

    The saddest part is if the just follow precedent and the law this would not be a mess. States have the ability to create a vaccine mandate because they have a generalized police power. The federal government doesn’t have that ability. If they get the law right then the OSHA mandate is clearly unconstitutional. Unfortunately the New York state mandates, and the mandates on the military likely are constitutional, but stupid. It would be a small victory at least. I don’t understand how this isn’t a clear HIPAA violation. I am not sure how an executive agency can just override a piece of legislation because they feel like it, but apparently we don’t live in a country of laws anymore merely one of bureaucratic edicts.

    Apparently, the same way they can, through Executive Order, override our immigration laws. Congress passes a law and the Executive branch ignores its constitutional responsibility to enforce, while the POTUS ignores his sworn oath to order his people to follow and enforce the law. They are claiming this is an emergency, but that is thin gruel when the “emergency” they are claiming is approaching its second full year and Congress has had eons of time to pass a new law allowing these mandates. In other words, one could say this is BULL EXCREMENT. They just don’t care and enough people are allowing them to get away with it.

    • #14
  15. Dbroussa Coolidge
    Dbroussa
    @Dbroussa

    The Reticulator (View Comment):
    I hope there are people who chose to get vaccinated and who refuse to inform their employers. 

    I thought about doing that, but I do go into the office on occasion and don’t want to mess with the hassle of testing.

    • #15
  16. Dbroussa Coolidge
    Dbroussa
    @Dbroussa

    philo (View Comment):

    Boney Cole (View Comment):

    How can they mandate an experimental vaccine? Aren’t there laws about that?

    Just hold on. The good, conservative, Chief Justice Roberts will explain it to all of us very soon.

    Remember it’s ChiefJusticeJohnRoberts (He will never let conservatives down)(tm).  One of the few good article by Kyle Smith at NRO  Supreme Court: Imagining John Roberts Explaining Himself | National Review

    • #16
  17. Dbroussa Coolidge
    Dbroussa
    @Dbroussa

    Raxxalan (View Comment):

    Actually in thinking about It I am cautiously optimistic. They agreed to hear the case which means there are likely 4 votes to overturn the 6th circuit an educated guess would be Alito, Thomas, Gorsuch, and apparently Kavanaugh. That leaves Barrett and Roberts in the unknown category and the 3 liberals against. If they had a solid 5 for the mandate the easier path would be for them to not take the case which is what I am sure Roberts would have preferred. Barrett seems so far to follow Kavanaugh so that may be a good sign. Also Kavanaugh is skeptical of Chevron so that is a good sign as well. Of course this is all reading the tea leaves and thinking back on the lessons learned from listening to Law Talk.

    I would not necessarily count on Thomas being against this one.  I like Justice Thomas a great deal, but he also has a tendency to show great deference to the State and its powers

    • #17
  18. Raxxalan Member
    Raxxalan
    @Raxxalan

    Dbroussa (View Comment):

    Raxxalan (View Comment):

    Actually in thinking about It I am cautiously optimistic. They agreed to hear the case which means there are likely 4 votes to overturn the 6th circuit an educated guess would be Alito, Thomas, Gorsuch, and apparently Kavanaugh. That leaves Barrett and Roberts in the unknown category and the 3 liberals against. If they had a solid 5 for the mandate the easier path would be for them to not take the case which is what I am sure Roberts would have preferred. Barrett seems so far to follow Kavanaugh so that may be a good sign. Also Kavanaugh is skeptical of Chevron so that is a good sign as well. Of course this is all reading the tea leaves and thinking back on the lessons learned from listening to Law Talk.

    I would not necessarily count on Thomas being against this one. I like Justice Thomas a great deal, but he also has a tendency to show great deference to the State and its powers

    He does, but I trust his constitutional interpretation.  I doubt he will find a police power for the federal government to do this.  I suspect the reason the New York mandate did not get accepted was because he wasn’t necessarily onboard with going against the generalized police power of a state.  We’ll see.  The only reason I suggest Thomas is on the side of overturning it is because I don’t see why they would agree to hear it if they were going to uphold the 6th Circuit.  Unless there is a technical reason why they have to.  I am not sure if the way this went down constitutes a circuit split.  I don’t think it technically does, but someone more familiar with the law than I am would have to weigh in on that.

    • #18
  19. Kelly B Member
    Kelly B
    @KellyB

    The Reticulator (View Comment):

    I hope there are people who chose to get vaccinated and who refuse to inform their employers.

    Why yes, there are. I ended up getting a J&J back a few months ago, but that’s not my employers’ business, so now I do a quick nose swab twice a week and report to them that “I still don’t have it”. No intention to change that, either.

    • #19
  20. Instugator Thatcher
    Instugator
    @Instugator

    philo (View Comment):
    But it also became clear mid-way through the process that the exemption requests…primarily on religious grounds…were being met with a very active rubber stamp. Thousands of such exemptions were approved.

    Not for people in the military.

    • #20
  21. Jim McConnell Member
    Jim McConnell
    @JimMcConnell

    Stad (View Comment):

    Dbroussa: I mean, honestly, can you think of where this could go eventually?

    I really thought Biden was going to mandate all people on Medicare and Medicaid be vaccinated or lose the benefit . . .

    Don’t be giving them ideas!!

    • #21
  22. Jim McConnell Member
    Jim McConnell
    @JimMcConnell

    philo (View Comment):

    Boney Cole (View Comment):

    How can they mandate an experimental vaccine? Aren’t there laws about that?

    Just hold on. The good, conservative, Chief Justice Roberts will explain it to all of us very soon.

    As soon as he checks the polls. That seems to be his guidance, not the constitution.

    • #22
  23. Raxxalan Member
    Raxxalan
    @Raxxalan

    Instugator (View Comment):

    philo (View Comment):
    But it also became clear mid-way through the process that the exemption requests…primarily on religious grounds…were being met with a very active rubber stamp. Thousands of such exemptions were approved.

    Not for people in the military.

    Yep, unfortunately that probably falls into the constitutional but stupid bucket.

    • #23
  24. Old Bathos Moderator
    Old Bathos
    @OldBathos

    IN RE YOUR MEMO:

    I do not accept correspondence of any kind unless the sender includes proof of current vaccination status in the header.  Please revise accordingly and resend. Thank you.

    _________________

    They politely suggested I take down the sign on my office door:

    “Please do enter unmasked unless you know someone who has been vaccinated.”

     

    • #24
  25. DrewInWisconsin, Oaf Member
    DrewInWisconsin, Oaf
    @DrewInWisconsin

    Dbroussa: Honestly, I have zero faith that SCOTUS will decide that the mandate isn’t allowable on constitutional grounds.

    Same. I fully expect SCOTUS to uphold it.

    And then the cold civil war turns hot.

    • #25
  26. DrewInWisconsin, Oaf Member
    DrewInWisconsin, Oaf
    @DrewInWisconsin

    philo (View Comment):

    The case that I am familiar with now touts greater than 98% compliance (i.e., vaccinated + approved waivers/exemptions). I have no access to real data but I get the impression that many just caved and got the shots. (The bad faith EO worked quite well regardless of how the courts rule.)

    Unfortunately true. And now we have hospitals bragging that they only had to fire a small percentage of their workforce, so it’s okay. Hero to Zero in just a few short months.

    So they know that they can threaten job loss and people will cave.

    And the left just says “Of course it’s not coercion because you have a choice! Get jabbed or get fired!” (Proof they don’t know what coercion is.)

    I know that Pfizer and Moderna will suffer no consequences for the harm their vaccines are doing, but what about private companies? If a company forced a vaccine on a worker, and that vaccine caused health issues, is that company liable? Because a few well-placed lawsuits would end this tyranny quickly.

     

    • #26
  27. Stad Coolidge
    Stad
    @Stad

    Richard Easton (View Comment):

    Stad (View Comment):

    Dbroussa: I mean, honestly, can you think of where this could go eventually?

    I really thought Biden was going to mandate all people on Medicare and Medicaid be vaccinated or lose the benefit . . .

    That would get too many people angry with him. It’s not about the science; it’s how much they can get away with without ticking off too many people.

    Seems like they’ve already ticked off too many people . . .

    • #27
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