President Joe Biden announced his unprecedented COVID vaccine order on Thursday, and within moments it brought an onslaught of legal threats and accusations of executive overreach.
As part of the White House's aggressive new approach to fighting the pandemic, the president directed the Labor Department's regulatory agency, the Occupational Safety and Health Administration (OSHA), to mandate all businesses with at least 100 employees either require all of them to be vaccinated or submit to weekly COVID testing.
The agency has the authority to issue an 'emergency temporary standard' (ETS) if it can prove workers are exposed to a grave danger and the rule is deemed necessary to address it.
They are expected to issue it 'in the coming weeks,' the White House said.
More than 80 million workers will be affected.
A Congressional report updated in July notes how rarely emergency standards are used. Before the COVID pandemic the last OSHA ETS was struck down in 1983, when a federal court said the agency failed to support its claim that asbestos exposure in the workplace needed to be further reduced due to a significant adverse impact on employees' health.
OSHA issued an ETS in June to protect health care workers from COVID by mandating workplaces like hospitals and nursing homes to draft a plan on keeping employees safe, improving ventilation, supply adequate PPE and implement social distancing measures or build barriers where that's not possible.
It also requires relevant companies to give employees paid time off to get vaccinated or paid leave in the event they test positive.
And while the idea might be 'well-intentioned,' a Friday morning op-ed claims, Biden also risks 'shredding the social fabric' of an already divided country by stretching the bounds of constitutionality.
'The president should not — and likely does not — have the power to unilaterally compel millions of private sector workers to get vaccinated or risk losing their jobs,' Republican commentator Robby Soave wrote in the New York Times.
Biden's Thursday announcement prompted an onslaught of legal threats
Businesses that don't comply will face fines of up to $14,000.
Soave argues it's 'fundamentally undemocratic' for a president to enable a federal agency to direct and oversee a new law - labeling OSHA an 'unaccountable bureaucratic agency.'
Duke University senior lecturing fellow Dan Bowling pointed out to McClatchy News that OSHA's investigative and enforcement capabilities are relatively weak compared to the IRS or Securities and Exchange Commission.
'If somebody falls off a ladder that was broken in a place of business and breaks his or her leg, that's pretty easy to prove employer liability. The employer would have to report the accident under OSHA,' Bowling said. 'If someone catches COVID who works somewhere that doesn't follow the vaccine mandate, how do you prove that?'
Among the parties challenging the strict measure in court are the Republican National Committee, as well as the governors of at least nine states.
South Dakota Governor Kristi Noem, who's resisted implementing a mask mandate even when its COVID hospitalizations and deaths were among the highest in the country, promised to see Biden 'in court.'
Georgia's Gov. Brian Kemp vowed to 'pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach.'
But in states like Montana, Texas and Florida, which all said they intend to sue, OSHA's ETS rules predate similar existing state guidelines - which would make a legal case more of an uphill battle than states that created their own OSHA-approved regulatory bodies after the fact.
Biden directing OSHA to use its Emergency Temporary Standard for his vaccine order will affect more than 80 million workers
What is OSHA?
The Occupational Safety and Health Administration was created by President Richard Nixon under the Occupational Safety and Health Act of 1970.
OSHA has jurisdiction over most private and public workplaces across the country, but some states have their own OSHA-approved regulatory agencies.
The agency regulates health and safety standards in the workplace. To enforce that it's able to conduct unannounced inspections ensuring those standards are met.
Since it was created workplace deaths fell dramatically by nearly 63 percent, according to OSHA. An estimated 14,000 workers - or 38 per day - were killed on the job in 1970. But 2018 the number fell to 5,250, despite a doubling of the total US workforce.
OSHA's process for enacting new workplace standards includes consulting a number of relevant advisory committees linked to the Labor and Heath and Human Services Departments, as well as consulting business owners and allowing a window for public input, at least 30 days but 'usually 60 days or more.'
Businesses in states with their own OSHA-approved agencies can ask for a 'variance' in the rule if they can't comply by the effective date.
If the state is under federal OSHA jurisdiction then the agency will have to work with the state to determine if the exception can be granted
What is an Emergency Temporary Standard (ETS)?
An ETS allows OSHA to bypass the consultation process and public input window if it determines 'workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them.'
Emergency standards can take effect immediately but only stay in effect until replaced by a permanent standard.
That proposed permanent standard must go through the regular bureaucratic channels and be decided upon within six months.
During that time the temporary rule can be challenged in an appropriate federal court.
OSHA can issue 'temporary variance' rules to employers who prove they can't comply with a regulation in time, but they have to demonstrate they are taking all the necessary and possible steps to protect workers, and show a roadmap toward compliance.
The Labor Department regulatory agency has the authority to issue an 'emergency temporary standard' if it can prove workers are exposed to a grave danger and the rule is deemed necessary to address it
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Biden's announcement is part of the administration's aggressive new approach to tackle the coronavirus pandemic
According to a political expert at Cedarville University, it'll be up for the court to decide whether Biden's interpretation of the OSHA statute in question is correct and if it's feasible for employers to enforce.
If not, he could be violating his executive powers under the Constitution.
'Legislation doesn't really unpack what that phrase should be in terms of 'grave danger' so it's going to be interesting to watch,' Center for Political Studies Director Dr. Mark Caleb Smith told an NBC affiliate.
'For the president to do this just with his own power through executive power, no legislation in place, without the typical notice and comment period connected to federal bureaucratic decisions, it's a huge bypass of the typical process.'
He predicted the mandate will likely face too much resistance to stick.
'I think the opposite might happen, a lot of people are going to draw a line in the sand and say I'm not going to do it, you're not going to order me to do it,' Smith said.
Meanwhile Republican lawmakers, including Senator Ted Cruz, are upset with Biden's Chief of Staff Ronald Klain after he retweeted a post saying President Biden's new vaccine mandate is the 'ultimate work-around.'
Chief of Staff Ronald Klain retweeted a post saying President Biden's new vaccine mandate is the 'ultimate work-around'
Klain retweeted MSNBC anchor Stephanie Ruhle Thursday after Biden made the announcement
'Biden admin knows it's likely illegal (like the eviction moratorium) but they don't care,' Cruz wrote
Klain retweeted MSNBC anchor Stephanie Ruhle Thursday after Biden made the announcement.
'OSHA doing this vaxx [sic] mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt [sic] to require vaccinations,' Ruhle wrote and Klain retweeted.
Republicans were quick to jump on the retweet, including Texas Senator and former presidential candidate Ted Cruz.
'Important,' Cruz tweeted. 'Foolish RT from WH chief of staff. He said the quiet part out loud. Biden admin knows it's likely illegal (like the eviction moratorium) but they don't care.'
This followed up complaints from Republicans, including Arizona Governor Doug Ducey, about the mandate's constitutionality.
Biden on Thursday announced an aggressive new plan to get 100 million employees across the federal government and private sector vaccinated against COVID as the case rate continues to rise due to the Delta variant.
To reach his goal, Biden will use the sweeping power of the federal government, ordering companies to vaccinate workers or face fines of up to thousands of dollars. If the administration hits its 100 million mark that means two-thirds of the country's workforce would be vaccinated.
The Labor Department issued an emergency, temporary order to require all businesses with 100 or more employees to ensure every worker is either fully vaccinated or gets tested at least once a week.
The order covers over 80 million employees and it will require employers with 100 or more employees to give employees paid time off to get vaccinated.
Biden breaks his promise not to mandate vaccines
Biden on Thursday announced sweeping new federal vaccine mandates affecting as many as 100 million Americans, sharply denouncing those who have not yet received the shots.
The new rules requires workers at companies with more than 100 employees to get vaccinated or tested weekly, and orders federal employees and healthcare workers to get the shots, with no testing alternative.
It was a marked change in position for the White House, perhaps reflecting the administration's desperation as the Delta variant fuels a huge surge in infections across the country.
In December, Biden said at a press conference in Wilmington, Delaware when asked asked about a federal vaccine mandate:
'I don't think it should be mandatory, I wouldn't demand it to be mandatory, but I would do everything in my power...as president of the United States to convince people to do the right thing.'
The White House doubled down on this stance as recently as July, when Press Secretary Jen Psaki said it was 'not the role of the federal government' to require vaccines.
'That is the role that institutions, private-sector entities, and others may take. That certainly is appropriate,' said Psaki.
Any business that violates the new rule will face substantial fines, up to $14,000.
He also required all workers in healthcare settings that receive Medicaid or Medicare reimbursement to get vaccinated, which will apply to 17 million healthcare workers.
That is in addition to his executive order requiring all federal workers and contractors to get vaccinated.
A senior administration official described it as an 'aggressive, comprehensive' plan to fight COVID as part of their mission to 'vaccinate the unvaccinated.' The official estimated nearly 80 million Americans are eligible to receive a shot but have not.
Additionally, the roughly 300,000 educators in headstart programs will be required to be vaccinated.
'It's simple - if you want to work for the federal government, you must be vaccinated. If you want to do business with the government, you must vaccinate your workforce,' the senior administration official said on a briefing call with reporters previewing the president's remarks.
Additionally the TSA is doubling fines for people who refuse to mask on planes. The new range of penalties, which take effect Friday, September 10, 2021, will be $500-$1000 for first offenders and $1000-$3000 for second offenders, the Department of Homeland Security announced.
Biden also called on governors to require vaccinations for all school teachers and staff.
Republican members of Congress and state governors promised to challenge the mandate.
Biden was praised by supporters for striking a more urgent tone. These supporters insist that one of the key reasons cases are spiking in the U.S. is due to the 80 million who have refused the jab.
Arizona Republican Gov. Doug Ducey vowed fight back.
'This is exactly the kind of big government overreach we have tried so hard to prevent in Arizona — now the Biden-Harris administration is hammering down on private businesses and individual freedoms in an unprecedented and dangerous way,' Ducey wrote. 'This will never stand up in court.'
In Florida, Republican Gov. Rick DeSantis has threatened to with hold funding from school districts that require face masks.
To counter moves like that, the Department of Education will make additional funding available to help local school districts backfill salaries and other areas where it has been with held.
'This will never stand up in court,' Ducey tweeted
Biden also addressed booster shots in his remarks, leaving the details of timing to the FDA and CDC but noting preparations are underway to get another round of shots in arms.
He also ramped up testing by using the Defense Production Act to accelerate the production of rapid tests, including at home test, and purchase $2 billion worth of rapid tests e and over the counter at home COVID tests for a total of 280 million tests.
'The president's plan, as you can see, it's comprehensive, it's aggressive, and will ensure that we make more progress in our fight against the virus to save even more lives in the months ahead, while also keeping schools open and protecting our economy from lockdowns,' the official said.
As part of the sweeping mandates, Biden will require all of the roughly 2.1 million federal workers to be vaccinated as part of a series of new mandates.
There will be limited exceptions but any federal employee who refuses the shot can be fired, White House press secretary Jen Psaki said Thursday.
Federal employees and contractors will have 75 days to get vaccinated.
The executive order will not include an option of being regularly tested to opt out of the vaccine requirement. The orders will apply to workers in the executive branch but not the congressional or judicial.
White House press secretary Jen Psaki said any federal employee who doesn't get vaccinated can be fired
'There will be limited exceptions for legally recognized reasons disability or religious objections,' Psaki said. Anyone who 'fails to comply, they will go through the standard HR process, which includes counseling and face disciplinary action,' she added.
She confirmed that action could include termination of employment.
'Hopefully it won't come to that,' she said.
She said the administration wanted the federal government to serve as an example for other businesses and organizations when it comes to vaccines.
'Obviously the federal workforce is one of the largest in the country and we would like to be a model to what we think other businesses, organizations should do,' she noted. 'The expectation is that if you want to work with federal government or be a contractor, you need to be vaccinated unless you are eligible for one of the exemptions.'
Republican Congressman Rob Wittman of Virginia, who has federal workers in his district, said he objected to the forced vaccines.
'Although I have personally been vaccinated and regularly encourage those I represent to get vaccinated as well, I fundamentally disagree with forcibly injecting America's public servants,' he told DailyMail.com in a statement.
'Our government was founded to secure the individual liberties of all. We should instead continue educating the public that the COVID-19 vaccines are both safe and effective. Resorting to forced vaccinations, and returning to unnecessary restrictions, only serves to eliminate critically important vaccination incentives and undermine public confidence in the vaccines' efficacy,' he added.
The American Federation of Government Employees, the largest union of federal workers, said they would bargain over the order.
Biden declares war on the 80M unvaccinated Americans
President Joe Biden on Thursday declared war on the 80 million Americans who have yet to get a COVD vaccine and asked them 'what more is there to wait for' as he announced mandates covering two thirds of all workers.
'This is not about freedom or personal choice. It's about protecting yourself and those around you, the people you work with, the people you care about, the people you love. My job as president is to protect all Americans,' he said in remarks in the State Dining Room at the White House.
'We've been patient but our patience is wearing thin. And your refusal has cost all of us. So please do the right thing,' he said.
Biden charged the unvaccinated with 'overcrowding our hospitals and overrunning emergency rooms intensive care units, leaving no room for someone with a heart attack or pancreatic cancer.'
The president decried the 'pandemic politics' that he said was behind those who had not yet gotten a shot in the arm, calling out public officials who were 'actively working to undermine the fight against COVID-19.'
'These pandemic politics, as I refer to, are making people sick, causing unvaccinated people to die. We cannot allow these actions to stand in the way of protecting the large majority of Americans who have done their part and want to get back to life as normal,' he said.
He charged those who were fighting against COVID-19 mitigation procedures with helping increase the death rate. He didn't mention any specific official by name by his administration has publicly clashed with the Republican governors of Florida and Texas, Rick DeSantis and Greg Abbott.
'There are elected officials actively working to undermine the fight against COVID-19,' Biden said. 'Instead of encouraging people to get vaccinated and mask up, they're ordering mobile morgues for the unvaccinated dying from COVID in their communities. This is totally unacceptable.'
He ended his nearly 30 minute speech with a whispered plea: 'Get vaccinated.'
'My message to unvaccinated Americans is this - what more is there to wait for?,' Biden said. 'What more to you need to see? We've made vaccinations free, safe, and convenient. The vaccine has FDA approval. Over 200 million Americans have gotten at least one shot.'
'Workers deserve a voice in their working conditions,' the group said in a statement. 'Neither of these positions has changed. We expect to bargain over this change prior to implementation, and we urge everyone who is able to get vaccinated as soon as they can do so.'
And the National Federation of Federal Employees, another government workers union, said they didn't receive advance notice of the executive order.
Psaki dismissed questions about the unions not being consulted. The Biden White House has bragged about its pro-union stance. At a Labor Day event on Wednesday, Labor Secretary Marty Walsh said President Biden told him: 'This is labor's house.'
'We have a range of consultation with labor unions, and that has been the case for several weeks and months as we have worked to implement additional steps,' Psaki said.
'But our objective here is to continue to save lives.'
The president is putting more pressure on states, businesses and schools to get people vaccinated as the Delta variant causes the case rate to continue to rise in the United States.
But Republican-led states including Texas and Florida have pushed back and are in the process of trying to ban the orders being imposed.
Psaki indicated in interviews on Thursday morning that more mandates were coming.
'What we've seen work over the past couple months are mandates, requirements, making it so workers in the federal government or others have to get vaccinated. We've seen it work and we've seen it become more popular,' Psaki said on MSNBC's Morning Joe.
'He's going to speak directly to vaccinated people and their frustrations and he wants them to hear how we're going to build on what we've done to date to get the virus under control,' she said.
The Department of Health and Human Services and the Department of Veterans Affairs already mandate vaccines for their employees. The military also has issued a vaccine mandate.
There have now been more than 40 million cases of COVID recorded among Americans, which is nearly one-fifth of the global total of cases.
President Biden and administration officials have repeatedly emphasized the best way for life to return to normal is for people to get vaccinated.
Biden also plans to call for a global summit, to be held during the U.N. General Assembly later this month, to respond to the pandemic and talk about how to get more vaccine supply to the developing world.
About 27 per cent of the eligible U.S. population age 12 and older have not received any COVID vaccine, according to data from the Centers for Disease Control and Prevention. Meanwhile about 75 per cent of Americans have received at least one shot and 53 per cent are fully vaccinated.
In December 2020, after he was elected but before he took office, Biden said he didn't think COVID vaccines were necessary.
'I will do everything in my power as president to encourage people to do the right thing and when they do it, demonstrate that it matters,' he said at the time.
Meanwhile, Dr. Anthony Fauci said this week Americans are getting infected with COVID at 10 times the rate needed to end the pandemic.
'We're still in pandemic mode, because we have 160,000 new infections a day,' Fauci told Axios. 'That's not even modestly good control.'
Dr. Anthony Fauci said this week Americans are getting infected with COVID at 10 times the rate needed to end the pandemic
'In a country of our size, you can't be hanging around and having 100,000 infections a day,' he continued. 'You've got to get well below 10,000 before you start feeling comfortable.'
The vaccination rate among Americans has increased since July, which is when the Delta variant caused case rates to spike, but it remains low in Southern states like Florida and Texas.
The Biden administration has already taken steps to try and stop Republican-led states from rolling back COVID mandates.
Last month, the Education Department announced civil rights investigations into five states that banned schools from imposing mask mandates, claiming their stance could discriminate against students with disabilities or health problems.
Education chiefs in Iowa, Oklahoma, South Carolina, Tennessee, and Utah have been told they are under investigation.
'It's simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve,' said Education Secretary Miguel Cardona.
'The department will fight to protect every student's right to access in-person learning safely.'
'My message to unvaccinated Americans is this: what more is there to wait for? What more do you need to see? We have made vaccinations free, safe, & convenient. The vaccine is FDA approved. Over 200 million Americans have gotten at least one shot. We have been patient, but our patience is wearing thin, and the refusal has cost all of us,' Biden said.
Confusion over Biden's vaccine mandate as 600,000 USPS workers will be pressed to 'comply' through Labor Department rules for private sector and NOT the federal vaccine mandate
Reporting by Ronny Reyes
President Joe Biden issued orders for all federal workers to be vaccinated against COVID-19 on Thursday, but of the more than 2 million public employees, about 600,000 U.S. Postal Service workers won't have to get the jab.
The USPS's exemption comes from its status as an independent agency of the executive branch, which means it must be specifically named in Biden's mandates in order for the new rules to take effect.
'USPS has a separate statutory scheme and is traditionally independent of federal personnel actions like this,' the Biden administration official said.
'That said, USPS is strongly encouraged to comply. Also, [the Labor Department's Occupational Safety and Health Administration] will cover USPS through the [emergency temporary standards], meaning that postal workers will be subject to the vaccination or testing policy announced today.'
This means rather than being treated like a federal agency, the USPS would follow the rules of private businesses after Biden ordered workers at companies with more than 100 employees to get vaccinated or tested weekly.
About 600,000 U.S. Postal Service employees will be exempt from the vaccine mandate for federal workers. Pictured, a mail carrier delivering mail in Fairfax, Virginia
Joe Biden issued vaccine mandates for federal employees and worker in companies that hire 100 or more people during his speech on Thursday
About 75% of eligible adults in the U.S. have gotten at least one jab of the vaccine
The mandate will also force the Occupational Safety and Health Administration to develop emergency regulations requiring these companies to give employees paid time off to get inoculated.
Employers could also face fines of nearly $14000 per violation, Bloomberg reports.
The move comes in stark contrast to Biden's speech on Thursday, where he said it was adamant that the federal government stands behind the vaccination effort and lead with mandatory vaccine requirements.
'If you want to work with the federal government and do business with us, get vaccinated. If you want to do business with the federal government, vaccinate your workforce,' Biden said.
USPS employees will be treated like private employees and have the option of either getting fully vaccinated against COVID-19 or taking weekly tests
Millions of people across the U.S. will be required to the COVID-19 vaccine
The president has faced backlash over the mandate as the Republican National Committee said they would sue to block the order, and House Republicans vowed to introduce legislation to stop it.
'Joe Biden told Americans when he was elected that he would not impose vaccine mandates. He lied,' said RNC Chairwoman Ronna McDaniel, who added that she was 'pro-vaccine and anti-mandate'.
Other Republican governors are also mounting a defense against Biden's aggressive new order and vowing to fight it through state laws and lawsuits.
Arizona, Montana, Indiana, Arkansas, Missouri, Georgia and South Carolina were all among the Republican-led states that threatened legal action.
'Forcing this and coercing people, I don't think is the right decision. I'd imagine that you're gonna see a lot of activity in the courts if they try to do that through an executive action,' Florida Governor Ron DeSantis said during a press conference Thursday.
Florida Republican Ron DeSantis is just one of several governors blasting Biden's announcement and vowing to block the order with state laws and lawsuits
While many some of the largest employers in the U.S. have passed their own vaccine mandate, some are left puzzled by the lack of details in Biden's order.
Betsy Booren, vice president of regulatory and technical affairs for the Consumer Brands Association, told Bloomberg that officials in the packaged goods industry are wondering how the government will track their employees' vaccinations or help fight against vaccine hesitancy.
'What I hope we'll not have is a delay of weeks and months to get some basic answers,' Booren said.
Jay Timmons, chief executive officer of the National Association of Manufacturers, warned in a statement that the new mandates should avoid hurting employers amid the pandemic recovery efforts.
'It is important that undue compliance costs do not burden manufacturers,' he said.
The U.S. Chamber of Commerce said it 'will carefully review the details of the executive orders and associated regulations, and will work to ensure that employers have the resources, guidance, and flexibility necessary to ensure the safety of their employees and customers and comply with public health requirements.'
The new mandates come as more than 75% of adults eligible for the vaccine in the U.S. have gotten at least one jab, according to the Centers for Disease Control and Prevention.
The delta surge in August had brought daily COVID-19 cases up to nearly 300,00, and although cases began to dip in September, the nation had experienced another dramatic uptick on Thursday.
The CDC reported more than 163,000 new cases, and nearly 1,650 new deaths.
Source : https://www.dailymail.co.uk/news/article-9977585/How-Biden-overstepping-Constitution-emergency-order-workers-grave-danger.html7821