The Unvaccinated will be Punished

And the problems with the Biden OSHA standards

Today, President Biden announced the federal government would protect the vaccinated from the unvaccinated.

It is official: the unvaccinated have become the scapegoats.

As we said in August, “trust them at their word when they advocate restricting your rights and inflicting punishment if you remain unvaccinated.”

This is the result (but not the end-result) of a creeping nastiness towards the unvaccinated that we warned about last month, after the NYC required a vaccine to “participate in society fully” and The Atlantic said the unvaccinated “belong on the no-fly list.”

Others contributed and pushed things further. The call by the New York Times’ Ezra Klein to start “raising the costs of remaining vaccinated.” Dr. Fauci said the government needed to “do something to get them to be vaccinated.”

Biden listened. He is mandating that larger employers mandate vaccines or undergo weekly testing or be fined up to $14,000 per violation. As the AP reports:

The requirement for large companies to mandate vaccinations or weekly testing for employees will be enacted through a forthcoming rule from the Occupational Safety and Health Administration [OSHA] that carries penalties of $14,000 per violation, an administration official said. The White House did not immediately say when it would take effect, but said workers would have sufficient time to get vaccinated.

This coincides with Biden mandating federal employees and contractors get the vaccine. All except USPS, whose workers somehow escaped this mandate.

I would guess the USPS union donations (which are almost all to Democrats) and their endorsement of Biden in 2020 might have something to do with this exemption.

Anyway, the Biden Administration will attempt to implement the employer vaccine mandate and punishments through an Emergency Temporary Standard (ETS). Think of this as a temporary measure that allows the agency to bypass normal rulemaking and regulatory procedures. The ETS is governed by 29 USC 655, which states:

Look closely at part (A), which requires the Secretary of Labor to determine that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”

How has OSHA determined ALL large employers are exposing their employees to “grave danger”?

Here’s the answer: they haven’t. And they don’t think they have to.

In using the ETS – which are temporary - the Biden Administration is bypassing statutory and caselaw requirements that govern permanent health and safety standards. Think of that for a moment: that they wish to use temporary regulations to mandate permanent vaccines.

If this were permanent, OSHA would have to make “a threshold finding that a place of employment is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a change in practices.”

This legal maneuvering, which lessens OSHA’s evidentiary and fact-finding burdens, should be no surprise. OSHA (like Biden himself) has a long history of unlawfulness and of ignoring its own regulations. Most recently, the agency is refusing to enforce its own rules requiring employers who mandate vaccinations from recording the side effects.

If there is any good news with all of this, it is that the proposed vaccine mandate will likely be found to be unconstitutional and/or unlawful and will be stayed from taking effect pending judicial review.

The challenges will include that OSHA and the Secretary of Labor exceeded their authority; that OSHA regulations generally don’t allow for vaccine mandates; that the current conditions do not warrant the issuance of the ETS (no grave danger); and that the proposed regulations are otherwise arbitrary and capricious.

We also observe that while this is a mandate that applies to large businesses, it is really a mandate that applies to employees of large businesses. Perhaps there will be an equal protection issue given the mandate depends on how large your employer might be.

We’ll be providing updates on arguments concerning the constitutionality and legal challenges as this issue develops. In the meantime, we’ve already filed a FOIA request to the Secretary of Labor.