One Month Reprieve
Biden won an appeals court decision last Friday by a 2-1 vote in the 6th Appellate Court after getting a 3-0 blistering rebuke by the 5th.
Despite dubious legality that will be decided by the Supreme Court, Biden presses on with a one-month extension to his mandate.
A federal appeals court Friday reinstated Biden administration rules that require many employers to ensure that their workers are vaccinated or tested weekly for Covid-19.
Following a federal appeals court ruling reinstating the administration’s vaccination rules, the Labor Department said Friday night it would give employers until Feb. 9 to comply with the rule’s testing requirements and until Jan. 10 to comply with the rest of it.
Employers who don’t comply with the requirements could face penalties of up to around $13,600 a violation. The requirements don’t apply to employees who don’t report to a workplace where other individuals are present, employees who only work from home or employees who work exclusively outdoors.
Three Biden administration vaccination requirements have been challenged in courts around the country. One set of rules, applying to many healthcare workers, is already pending at the high court after the Biden administration on Thursday asked the justices to reinstate the requirements as lower courts put them on hold in parts of the country.
Other vaccine rules that apply to federal-government contractors could land at the Supreme Court soon after lower courts have put them on hold.
The requirements “will cause irreparable harm to businesses and employees across the country, and will wreak havoc on supply chains that are already stretched to their limits,” said Robert Alt of the Buckeye Institute, an organization representing one group of employers challenging the rules.
In Friday’s decision reinstating the OSHA rules for private employers, the Sixth Circuit majority cited the continued Covid-19 public-health crisis and said the federal government had broad authority to ensure workplace safety.
A November White House Briefing has the complete set of rules but the dates are now changed. Here are some of the key rules.
- New Vaccination Requirement for Employers With 100 or More Employees: OSHA is issuing a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) to require employers with 100 or more employees (i.e., “covered employers”) to:
- Get Their Employees Vaccinated by January 4th and Require Unvaccinated Employees to Produce a Negative Test on at Least a Weekly Basis.
- Pay Employees for the Time it Takes to Get Vaccinated: All covered employers are required to provide paid-time for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working.
- Ensure All Unvaccinated Employees are Masked: All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace.
- New Vaccination Requirements for Health Care Workers: CMS is requiring workers at health care facilities participating in Medicare or Medicaid to have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4th. The rule covers approximately 76,000 health care facilities and more than 17 million health care workers – the majority of health care workers in America – and will enhance patient safety in health care settings. The rule applies to employees regardless of whether their positions are clinical or non-clinical and includes employees, students, trainees, and volunteers who work at a covered facility that receives federal funding from Medicare or Medicaid.
5th Court Ruling
On November 15, I noted Appeals Court Blocks Biden's Vaccine Mandate in a Blistering Rebuke
In a Strong Rebuke, the 5th Circuit Court of Appeals blasted Biden's OSHA vaccine mandate.
Summation of Key Terms Used by the Court
- "Fatally flawed"
- "One-size-fits-all sledgehammer"
- The "one-size-fits-all Mandate" is simultaneously overinclusive and "underinclusive"
- "Immense complexity"
- "It regulates noneconomic inactivity that falls squarely within the States’ police power"
- "True purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary."
Case Will Hinge on State's Rights
This case will be decided on the issue of states' rights.
"It regulates noneconomic inactivity that falls squarely within the States’ police power," said the 5th court.
I agree. I also agree supply chain disruptions and more worker shortages are likely if the mandate holds.
However, I don't get to make the call.
What About Antibodies and Omicron?
How many of the unvaccinated have antibodies that may be nearly as effective at preventing serious disease as being vaccinated?
Also, Omicron spreads easily. As many as 75% of those who get that variant are asymptomatic. And among the vaccinated, the Omicron symptoms are typically milder than the flue.
About 70% of adults are vaccinated and likely a huge percentage of the unvaccinated now have antibodies having gotten Covid somewhere along the way.
The main risk at this point is to the unvaccinated themselves not the unvaccinated spreading anything serious.
Thus, in terms of stopping the spread, Biden's mandate is sort of like attempting to hit flies with a sledgehammer.
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