Speaker 1: (00:00)
COVID vaccine deadlines are fast approaching for San Diego city workers, students 16 and up at San Diego unified schools, members of the military and many others, but one deadline that's now in limbo is abundant administration, vaccine mandate for employees in large businesses. The occupational safety and health administration or OSHA had issued guidelines for businesses of 100 employees or more to implement vaccine mandates by early January. But as of late last week, a court has suspended that order until several legal challenges against the mandate are heard. Joining me is legal analyst, Dan Eaton, attorney and partner at the San Diego firm seltzer Caplan McMahon. And Vitech Dan, welcome back to the show.
Speaker 2: (00:49)
Sure. Good to be with your
Speaker 1: (00:50)
Worry. What's the government's argument about why this vaccine mandate is needed.
Speaker 2: (00:56)
The government's argument is the interestingly that the mandate is needed to protect on vaccinated workers. Obviously this stems from presidential frustration over the fact that we have this last mile of vaccination that has not been done, but presidential patients with vaccination is not a reason for issuing an emergency temporary standards. What OSHA is saying is that this is necessary to prevent a grave danger to unvaccinated workers, uh, from, uh, those that, uh, are, uh, not vaccinated. And that's why they are mandating this vaccination with these narrow exceptions. And
Speaker 1: (01:31)
Who's challenging the mandate in court, who is
Speaker 2: (01:35)
Maureen. At this point, it's a wide range of businesses over half the states, including one state, interestingly petted by a democratic attorney, general, a number of individuals. I mean, understand that you're talking about roughly three dozen separate lawsuits, all of which now have been consolidated before the Cincinnati based six circuit court of appeals
Speaker 1: (01:56)
And the Biden administration urged businesses to, to prepare to implement the mandate in early January. But all that came to a stop last week. Why did the fourth circuit say that the order should be suspended?
Speaker 2: (02:09)
Because what the fifth circuit said was well not passing on what they said was the dubious constitutional justification for, uh, the mandate. They said OSHA had exceeded its power by issuing this emergency temporary standard, which can only be used in purposes of grave danger. They said OSHA really deals with workplace hazard. And what you're talking about is an airborne virus. Also, you're talking about a hundred, limiting it to a hundred plus employees. Are you really saying that, uh, this is in effect under inclusive. If it's such a grave danger, why not extend it to everyone? So it's questioning OSHA's justification its power under the emergency temporary standards, uh, authorization that it has to issue these without the kind of administrative reviews that comes with full on administrative or regulations. And they're saying OSHA just went too far under the statute that gives it the power to issue emergency temporary stents.
Speaker 1: (03:05)
And Dan, talk to us some more about the legal concern about the arbitrary nature of mandating only businesses with 100 or more employees.
Speaker 2: (03:14)
Yeah, that is one of the points that the fifth circuit pointed out in its order and understand of course, fifth circuit covers only Louisiana, Texas, and Mississippi, but nonetheless its order was fairly broad. And at least for now, OSHA has said, they're going to put on a whole to enforcing of this mandate. But the idea that it's arbitrary is that if this were really a great danger, why not go for those that are smaller or workplaces, which a lot of people work and it's arbitrary to start talking about limiting it to a hundred or more employees, employers with a hundred or more employees, if it's really a grave danger, if we're really talking about emergency it, auto apply to everyone and it's arbitrary justice select these larger employee yours.
Speaker 1: (03:53)
Is there any precedent for a government agency to issue an order like this?
Speaker 2: (03:59)
First of all, there's authority for their statutory authority to issue emergency temporary standards, which is what OSHA is relying on. But you're talking about precedent. You've heard a lot about the 1905 Supreme court case Jacobson versus Massachusetts. But the interesting thing is that fifth circuit points out that look that dealt with us state a government's ability to mandate vaccination. It didn't talk about the federal government's ability to issue mandates. And that's really the key distinction because understand that under our constitutional design general police powers over public health and safety are reserved to the states. And there is a question given the Biden himself early on this past summer expressed doubt as to whether the federal government could mandate such a vaccination, whether actually this goes too far with respect to the constitutional design in a federal government agency, regulating something that appears to be a generalized public health threat, normally within the exclusive jurisdiction of states.
Speaker 1: (04:54)
So apparently there's a good chance that the opponents of this mandate will succeed in court. Do you agree?
Speaker 2: (05:01)
You really don't know. Actually I know we're going to have to, obviously the fifth circuit at the three judges in the fifth circuit feel very strongly that there is a high likelihood that those who are challenging, it will succeed, but we're going to have to see, understand that what happened was the, uh, administrative oversight of the federal courts, tuck all of these things cause it's multi-district litigation and et cetera, right? We're going to pull a name of a circuit at random and the sixth circuit, which is based in Cincinnati now has all of them so far, at least as of today, the sixth circuit has not issued a ruling and understand the sixth circuit could very well declined to follow what the fifth circuit did and allow the mandate to go forward. But at least for now, OSHA has put it on hold and said, it's not going to enforce it.
Speaker 1: (05:43)
Is there any way that the bond administration could fashion an order that might pass legal scrutiny more easily than this OSHA vaccine mandate?
Speaker 2: (05:52)
It's not entirely clear because OSHA is a logical agency to issue this kind of a mandate. And that of course is limited to the workplace. It's hard to see how the federal government can itself just generally issue a vaccine mandate. I think even president Biden has said that he doesn't think so OSHA is a logical vehicle and it covers a lot of people, but it doesn't cover everyone, which is why we are getting into this issue of arbitrary. And whether it really does fall within the powers to issue emergency temporary standards that are designed to address hazards in the workplace that really can't be addressed any other way,
Speaker 1: (06:25)
Was possibly a way for the Biden administration to send a message to private companies. For instance, is it possible for private companies to issue their own vaccine mandates for employees?
Speaker 2: (06:36)
Let's see Marine. That's really the critical question because the answer, your question is yes, private employers always have had the ability to issue these mandates on their own. This was a way for the federal government to put some teeth behind that by exposing large employers that don't do it to fines of up to 14,000, roughly $14,000 per violation, but understand that private employers of any size as I still retain the ability, uh, to mandate vaccination. Uh, the question is whether without the federal bandaid here, uh, whether, uh, they are going to proceed, at least those who haven't already and understand still there's still a federal mandate that is in place. And that is a federal mandate that applies to federal contractors, namely private businesses that do business with the federal government.
Speaker 1: (07:22)
I've been speaking with legal analyst, Dan Eaton, and thank you, Dan so much
Speaker 2: (07:27)
Good to be with you and happy Thanksgiving. Same
Speaker 1: (07:29)
To you.
