all right. The federal Court of Appeals is reaffirming
its decision to freeze the controversial biden administration vaccine mandate
for american workers. The court says the requirement is
quote staggeringly overboard end, quote several GOP lead lead
states and businesses are also speaking out against the mandate
joining us now to break it all down is marjorie
method or partner at phillips and Associates. Marjorie really
glad to have you here and get your insight.
Let's just start with this. What is your reaction
to the court's decision? Is it justified? I
think that under the circumstances, um, that it
is indeed justified. It's fairly standard really, that
until because we had 11 circuits challenging the mandate that
it's only appropriate that it be stayed until the matter
can be given further review. So it's definitely appropriate
under the circumstances to make sure that fair and balanced
review is given. So this is more of a
technical stay. And I think some people assume that
it's uh, a theoretical approval of this and you're
saying this is more technical and procedural. That is
absolutely correct. This is purely procedural. We have
11 different circuits throughout the United States who have challenged
Biden's vaccine mandate as it relates to employers who have
more over 100 employees and those who are federal employees
and those who have federal contracts. So, because
there is wide objection to this mandate, it is
appropriate that the a stay come in just until a
circuit is chosen where the matter can be fully heard
by both sides. Really. God, we've got
to clear that up just in terms of the lower
court's ruling here and the arguments that are presented to
the lower court. Um we do know that that
the argument really focuses around being over inclusive this mandate
. Do you agree with that sentiment in terms of
the law that the biden administration or the argument the
biden administration is utilizing to implement this? Um and
and will the courts or are those, you know
, obviously not in favor of this be able to
ultimately make the argument that this is unconstitutional? So
that's a really interesting question and and it has a
lot of different layers. So I'm gonna try to
simplify it just what the two arguments are. Okay
, So the biden administration says, listen, we
have OSHA. OSHA is an agency that has been
given broad powers by Congress to deal with these E
. T. S. S. These what they
call emergency temporary standards when you have a toxic agent
or when you have like a illness or any kind
of issue that has, you know, nationwide impact
OSHA gives the federal government broad capability to put in
and implement these kind of promulgation rules, as you
say, right to protect all workers. So that's
what the biden administration is saying. And they say
that we have authority to do this under the broad
powers that are given under OSHA, what the Republican
side then is saying, They said no, this
is overbroad in order for an E. T.
S. To be activated. If you first you
have to show that there is a toxic substance and
agent and they say that covid is not a toxic
substance and agent and it's not a toxic substance.
An agent that is impacting every american worker, Every
american worker who has covid is impacted, but not
every american worker has covid. So by by using
your powers to navigate all american workers, that is
overreach and that's why they're saying that it is unconstitutional
. Now the fifth Circuit bought this argument right?
The fifth Circuit indicated that it is it is overreach
for these types of rules that do not impact all
of american workers to be to be tied into this
in this way. But other circuits have said differently
, for example, the second Circuit, which is
which is where we are in new york. The
Second circuit um struck was upheld the mandate as being
appropriate and constitutional. And this is where the lottery
of circuits really comes in because depending on which circuit
gets actually to hear this is gonna it's going to
impact our ability to predict what the outcome is.
And we just heard very very recently, just maybe
less than an hour ago that the Sixth Circuit is
actually the one that's going to be hearing this.
And as we may know, the sixth Circuit is
very pro Republican, 10 out of the 16 judges
are are Republican appointees. So if we're going to
use that as any sort of indication how this can
pan out, there's a great possibility that the man
they may be struck in the um stricken down,
does it then get appealed and then go to the
Supreme Court. And what's the potential timeline for that
? So then, yes, it can get appeal
, then it would go to the Supreme Court.
And as you well know that right now we have
a very Republican heavy Supreme Court. Um the commerce
clause over the past two decades have been, has
been walked back considerably in terms of its and its
effect on non economic type rules and provocations. So
if that is any sort of indication, then the
likelihood that is, if it goes to the Supreme
Court, it's going to be struck down as well
. You know what I find fascinating gear, obviously
, we do have mostly Republican led states and entities
Um that are arguing against this. We do just
have the news though of labor unions who are suing
the administration, um, saying that the mandate doesn't
protect workers and businesses enough that they want this to
reach beyond that. 100 plus workers uh companies,
100 or more workers, um what kind of policies
are these unions looking for? What unions are,
are really looking for is protection of all workers.
So of course, unions exist both in entities that
more have more than 100 employees and also small businesses
, they want as much protection as possible for their
members. And for that reason, they are always
going to ask for expansion of protection. Whereas Republicans
who who In many respects have have political politicized COVID-19
the vaccine and etc are using it for less protections
and and and and requesting more individual freedoms for individuals
as well as business is what we are seeing is
the impact of a divided America. On the one
hand, you said, you said it so eloquently
we have unions suing the administration saying that you're you're
not doing enough and then you have you have 11
causes of action from 11 different states, um,
circuits saying that you're doing too much. And it
is because Americans largely are divided fairly evenly on this
issue. Before I let you go, I want
to get your thoughts here. You know, several
large companies, Tyson Foods, JetBlue, we can
name a slew of others have issued kind of vaccine
requirements and their own mandates for workers. Um,
is it really necessary then? And could this argument
end up in court in terms of is it necessary
for the government to issue its own mandated businesses are
taking the lead in individually to ensure their workers are
safe. It is only the only necessary for the
government to put forth a mandate. So long as
there are businesses who exist who are counter to vaccines
. Private companies taking decisions under the E. E
. O. C guidance that says that man vaccine
mandates so long as you have an exemption for both
disability discrimination and religious discrimination are completely appropriate under the
law. When you start looking at constitutionality of something
that's when you have government action. But we don't
have enough private employers who are indicating that they are
they are willing to sign on to the vaccine mandate
because again this is largely a divisive issue. So
what a lot of the companies are doing, they're
allowing employees to make decisions for themselves and they're doing
their best to accommodate those individuals who don't want to
be I don't want to be vaccinated. It's a
very delicate balance, particularly as we as we face
the great resignation where we see the workforce declining and
declining. It is it is definitely shifting to more
employee friendly. So employers who want to keep their
employees particularly well performing employees are under grave advisement to
try to keep everybody happy and because there is such
a divide, it really is such a tight rope
. You know from an intellectual perspective, there's a
lot here that that you know that is interesting to
watch. But from a human being perspective it really
gives us great causing concern as to when we'll ever
see the end of this pandemic, One will ever
see the end of this pandemic. We hope that
it sometime soon marjorie your command of the law and
insight here is just impeccable. Thank you so much
for providing that insight with us marjorie method or partner
at phillips and Associates.