Karen Ensley and Brian Benitez, Ensley Benitez Law, PC
WHERE ARE WE AND WHERE DO WE GO FROM HERE?
RULES OF THE MANDATE
By Jan 4, 2022, the vaccine mandate states all business who employ more than 100 people must report that their workforce is fully vaccinated, or that any person refusing the vaccine must face weekly vaccine testing. Workers choosing to not be coerced into vaccination must wear masks on the job at all times. The mandate will not apply to remote employees or those who work exclusively outdoors, but it will apply to part-time, temporary, and seasonal employees (not staffing agency employees, although staffing agencies must submit to the mandate). Federal employees / contractors, and any healthcare worker in a facility which receives Medicare / Medicaid reimbursement (nearly all medical facilities) are all denied any choice and will likely be subject terminated upon refusal to comply with the mandate.
Workers will be considered fully vaccinated if they’ve received two doses of the Pfizer or Moderna vaccines, or one dose of the Johnson & Johnson. Employers must give employees paid time off to get the vaccine. They are also required to provide sick leave if employees have side effects and cannot work. The vaccine mandate will also impose other unfunded obligations on employers, such as processing accommodation requests and requests for religious and other exemptions. However, employers may impose the cost of weekly testing onto people not receiving the vaccine. Beginning Dec. 5, or when the mandate is no longer stayed, employers must begin offering time off for vaccination and start enforcing mask rules.
MORE POLITICAL THAN PRACTICAL
Congress could have passed legislation to impose this vaccine mandate, but Democrats hold only a thin margin in Congress, and the Democrat party performed poorly in the Nov. 2, 2021 elections. Further, all 435 seats in the House are up for re-election in the 2022 mid-terms. So political arithmetic appears to support the introduction of this wildly unpopular mandate through an already-unpopular president who won’t have to defend his decisions on the campaign trail for two more years.
THE LEGAL ELEMENT
The battle over the mandate will take place on two fronts – the Legal and the Practical. The legal fight has already begun, with the mandate having already been temporarily stayed by the Fifth Circuit mere days after its introduction. This likely tees up the seemingly inevitable Supreme Court hearing, but the Fifth Circuit’s injunction is only temporary, and the federal government’s response is due later today, Monday Nov. 8, 2021.
Until the Supreme Court weighs in, Governor Abbott’s Executive Order 40 still holds, and it remains illegal for any entity in Texas to compel a COVID-19 vaccine over any individual’s objection based on personal conscience, religious belief, or prior recovery from a COVID-19 infection. This Order does not apply to federal employees, contractors, or those employed by actual or de facto Government Sponsored Entities (of the federal government), which while being privately-owned entities are in reality subject to government control through funding, legislation, regulation, etc. (including many banks, most hospitals, and all defense contractors).
THE PRACTICAL ELEMENT
The legal fight may be nothing more than political theater if the Practical goal of the mandate is really to provide cover for private employers to carry out administration’s will. Private employers can generally mandate vaccination as a term of employment without any regard to the eventual Supreme Court decision (which will not affect private employers, because it will be a ruling limited only to whether the government can compel vaccination through OSHA). Even if the Supreme Court strikes down the mandate in its entirety, many employers will likely take cover behind the government’s coercive “Nudge” and implement the government’s will while blaming the White House in response to any bad press or employee push-back. A “nudge” occurs in politics or economics when a controlling body (like the government, social media sites, etc.) seeking an outcome (like submitting to vaccination, or voting a certain way in an online poll) deliberately alters the environment so that automatic cognitive processes are triggered to favor their desired outcome, such that the person making the “choice” goes in the direction of the “nudge” even though the person being nudged may honestly believe that he or she exercised free will in an unbiased environment.
BACK TO THE MANDATE – IS IT LEGAL?
Technically, no. From a textual perspective, the Constitution provides neither Congress nor the President the authority to mandate a jab for most people (non-federal employees). However, over the life of our republic, the Supreme Court has found more and more powers hidden between the lines of the Constitution, and there is no telling what will happen here. Still, because OSHA was created by Congress, it can’t have any authority forbidden to Congress itself. But because Congress passed this unpopular political hot-potato to the Oval Office, we won’t get a ruling on whether SCOTUS would find a way to grant Congress this power.
Implementation will be analyzed
Narrowing focus a bit, Biden seeks to impose this vaccine mandate through OSHA, and OSHA is using its Emergency Temporary Standard (“ETS”) as its authority to impose the mandate. Under the ETS, OSHA must show that: (i) COVID is a workplace hazard which falls in OSHA’s grant of authority; (ii) employees are exposed to “grave danger” from that hazard; and (iii) the ETS is necessary to protect employees from that danger. OSHA has attempted to use this power nine prior times. Courts have fully vacated or stayed the ETS in four cases, and partially vacated it in another.
Things the Court may Consider
This vaccine mandate was discussed in the media as early as September 9, 2021, but was not officially announced by the President until November 4, 2021, and is not scheduled to go into effect on January 4, 2022. Just given that COVID is the best-documented medical issue in human history, and that it is nearly two years old, and further that the mandate is not scheduled to go into effect for nearly four months after it was first discussed, all combine to make it difficult for OSHA to claim that COVID-19 is a “grave danger” and that the ETS is “necessary.”
Other issues which might lean toward mandate being vacated are: (i) this is beyond OSHA’s power to impose; (ii) it will be difficult to prove “grave danger” after nearly two years, regarding a virus with a 99%+ survival rate; (iii) part of OSHA’s “grave danger” rationalization is the speculative claim that today’s vaccination will help with tomorrow’s currently-unknown variants which may never develop; (iii) all government agencies are statutorily required to be independent – meaning that the political bodies cannot tell them what to do, making suspect the timing of OSHA’s determination that COVID-19 is only now a “grave danger”; (iv) the “ETS is necessary” conclusion is likely to be found overbroad as it ignores therapeutics other than as a topic for additional speculation, and cherry-picks studies minimizing natural immunity; (v) OSHA’s basis for intervention largely counter to the CDC admission that the vaccines suffer from reduced potency in relatively short periods of time, and the fact the COVID vaccines are not particularly effective with regard to preventing transmission.
BUT DOES THE LAW EVEN MATTER?
In many ways, no. Don’t forget this is a jab-or-test vaccine mandate, which employers can both compel, and satisfy the requirement with weekly COVID tests, and the testing element is more likely to remain than is the jab element of the mandate. In the real world, the expense, inconvenience, and other challenges resultant from mandatory weekly testing of a significant percentage of the American workforce may ultimately be the catalyst which accomplishes what may be the mandate’s intended goal of imposing the jab through private employers.
Even if the federal government knows, or should know, that the vaccine mandate is ultimately unenforceable, the recent CDC eviction moratorium scandal shows that there are not likely to be any repercussions to anyone at OSHA or in the White House for attempting to push it through. After courts in OH, TN and TX found the eviction moratorium unlawful (massively exceeding the scope of the CDC’s power), SCOTUS agreed, but elected to not enforce the law and to leave the moratorium in place, rationalizing that vacating the moratorium would disrupt Congressional rent relief, noting that it heard the case less than a month before the moratorium’s scheduled expiration. In response, the CDC introduced a second moratorium, which was largely the first moratorium clothed in slightly different words. SCOTUS quickly found this second attempted moratorium was also illegal, yet no CDC official was jailed, fired, or even disciplined.
In any event, it seems a good possibility that the true short-term goal here is to provide large employers the opportunity to act as agents for the administration and impose the jab. If the jab becomes de facto required, whether through law or the actions of corporations making it difficult to access public places or transact business without showing vaccination documents, then the discussion will shift to long-term boosters, and the costs in information, money and other restrictions required to remain in compliance. Even your fundamental right to access the courts may be subject to “showing your (vaccine) papers.” Don’t laugh. It has already started.
If you are inclined to impose the vaccine on your workforce, then now’s the time. There are few restrictions on a private employer taking this course of action but be mindful of the requirements to treat similarly situated people the same, other than for a valid, non-discriminatory reason. Ensure that you develop an OSHA and EEOC compliant set of forms and processes. If you are not inclined to impose the vaccine on your workforce, and you are over 100 workers, then consider working with your legal team on medical and religious exemption forms for your employees, and the most efficient way to process them, keeping in mind applicable laws and regulations. You may also want to consider whether restructuring your business into smaller discrete entities makes sense for you. If you are close to 100 workers, then give some thought to managing growth, and whether bringing on people in a non-traditional manner, (e.g. staffing agency) makes sense for you, or whether you should simply pause to see which way the wind blows. As always, bring all your legal, HR and tax advisors to this discussion and develop the plan that works best for you.
© Karen Ensley and Brian Benitez, Ensley Benitez Law, PC, 2021. All rights reserved. This article is provided for educational reasons exclusively and is not meant to be construed as legal advice. Ensley Benitez Law, PC, will represent you only after being retained and that agreement is made in writing.