Posted on 10/08/2021 11:05:07 AM PDT by RBW in PA
Can anyone tell me an actual court case that has been filed and is being litigated challenging the legitimacy of Executive Order 14042 of September 9, 2021 Ensuring Adequate COVID Safety Protocols for Federal Contractors? I am trying to support an argument stating that this Vaccine Mandate should not be enforced until it is deemed legal and enforceable by the court. When I search online all I find is media propaganda and then articles stating States have threatened to challenge. I can’t find one thing that says a case has been filed.
Thanks
I understand the states can’t file until OSHA promulgates regulation and they have not. They may not at all since this is intimidation tactics at this point.
The admin knows the regulations will not pass muster an d so instead persist taking the intimidation route causing woke employers to take the risk and heat for them.
The admin has created their usual fluster cluck of bedlam.
https://storage.courtlistener.com/recap/gov.uscourts.dcd.235825/gov.uscourts.dcd.235825.1.0.pdf
I am not a lawyer, also I didn’t read past the introduction. Perhaps this is what you are looking for?
PS
In essence, you are planning to fight a phantom.
If the EO was improperly done then it may be unenforceable. If it is not official then folks that might be affected by it may not have standing to sue (as it is not yet official).
I think the admin is using the threat of an official order to force contractors to do their bidding but avoiding a court battle for lack of standing.
There was something posted here yesterday that did Xiden is playing games with the OSHA rule, not promulgating it, just threatening to do so. So states have nothing to sue against while companies force compliance with that which does not exist. But that’s not the contractor EO.
are you gov’t or gov’t contractor or private co?
This may help: https://thefederalist.com/2021/10/07/joe-bidens-vaccine-mandate-doesnt-exist-its-just-a-press-release/
According to several sources, so far it appears no such mandate has been sent to the White House’s Office of Information and Regulatory Affairs yet for approval. The White House, the Occupational Safety and Health Administration (OSHA), and the Department of Labor haven’t released any official guidance for the alleged mandate. There is no executive order. There’s nothing but press statements.
Can they have a vaccine mandate on vaccines covered by the EUA? (No.)
There is no FDA approved vaccines available to be mandated yet.
Maybe try reaching out to counsel listed at the bottom of the link and ask your question.
1. The "OSHA mandate" doesn't exist and was just mumbled diarrhea from a retarded president.
2. The mandate covering Federal employees contractors does exist, has deadlines and timelines attached to it, and is probably on fairly solid legal ground. The only question is whether legal challenges based on a rejection of any medical and/or religious exemptions will be needed.
"Contractors subject to either the executive order or the Labor Department’s upcoming emergency rule will have to comply not just with the mandate, but also be mindful of exemptions and accommodations for employees based on the 1990 Americans with Disabilities Act and be aware of Title VII of the 1964 Civil Rights Act’s requirement for religious accommodations.Under the Americans with Disabilities Act, if an employee has a verified disability that prevents him or her from being vaccinated, then the employer must provide the employee with a reasonable accommodation. Currently, telework, wearing a mask and maintaining social distance while in the office have been the go-to accommodations for employers facing these kinds of requests. Whether that might change in light of the new mandates is hard to say; for example, if federal contractors are not given the option of weekly testing as an alternative to vaccination (which we expect will be the case), would testing be back on the table in the event of an accommodation request? Or, alternatively, will an employee be required to undergo weekly testing if he or she is unable to be vaccinated due to a disability? Testing is expensive over time and depending on who is forced to bear that cost may become a challenge based on the expense alone.
Religious accommodations present another potential challenge for employers. Under Title VII, a “sincerely held religious belief” may entitle an employee to religious accommodation, although personal and ethical anti-vaccination positions will not. Will it be incumbent on the employer to make this determination? And, if so, how will they do it?
It is highly likely that both Executive Order 14042 requiring contractors to get vaccinated and the upcoming Labor Department emergency rule will be challenged on constitutional or other grounds, but it is not at all clear what the outcome of those challenges may be or how long it would take to fully litigate these cases. These are unprecedented times.
That is largely unknown; emergency temporary standards are rarely used.In the 50-year history of OSHA, they have been issued only 10 times. Of these 10, four were invalidated or halted by a court and one was partially blocked. Unfortunately, this is not much history from which to glean any insight. But it does suggest that courts will strictly scrutinize OSHA’s use of an emergency temporary standard and we would expect the same here when the forthcoming standard is challenged in court."
"President Biden's vaccine mandate is being challenged in a lawsuit filed by four active-duty US Air Force officers, a Secret Service agent, a Border Patrol agent, and four other federal employees or contractors. The lawsuit claimed that "convicted serial killers who have been sentenced to death receive more respect" than citizens who are required to take vaccines.The lawsuit alleges that the vaccine mandate forces service members, federal employees, and federal employees to "inject themselves with: (1) a non-FDA approved product; (2) against their will; and (3) without informed consent." Plaintiffs seek a ruling that the vaccine mandates issued by Biden and the Department of Defense "violate the Fifth Amendment's guarantee of substantive due process" and "the equal protection component of the Fifth Amendment."
https://www.jdsupra.com/legalnews/biden-eo-for-federal-contractor-covid-2936284/
For EO 14042 specifically, the contract langauge that is to be inserted into contracts won’t exist until Oct 8, 2021 (today)
The EO does not itself require contractors to do anything. It instead directs federal agencies to
incorporate a contract clause (to be developed by October 8, 2021) - that will itself incorporate
guidance developed by the Safer Federal Workforce Task Force (to be completed by September 24, 2021)
- into contracts entered into or extended after October 15, 2021. As the requirements are implemented
through a contract clause, contractors ostensibly have a choice whether the guidance will apply by
them by electing to opt out of the contract or modification. As a practical matter, however, many
contractors will acquiesce to the contractual requirements if at all possible to avoid losing the
contract and the considerable revenue resulting therefrom.
Conspicuously absent from the EO is any discussion of a vaccination mandate. While some form of
vaccination mandate is presumed likely given Biden’s comments on the topic, the particular contours
of what safety guidance contractors must adhere to are governed by the forthcoming task force
guidance and resultant contract clause.
https://www.arentfox.com/perspectives/alerts/biden-eo-federal-contractor-covid-19-safety-leaves-vaccination-mandates-and
The very short answer is that the EO pertaining to federal contractors is not a blanket requirement applicable to all current contractors. It is mandating that a vaccine clause be inserted into all new contracts. So, the number of contractors impacted by this right now - and so with standing to sue - is very small. Probably take a bit to get lawsuits filed.
The EO says it should be "implemented consistent with applicable law" (Sec 4b).
Only EUA vaccines are available at this time so, the Authorization for Medical Products for Use in Emergencies, 21 USC 360bbb-3 applies.
https://www.law.cornell.edu/uscode/text/21/360bbb-3
Paragraph (e) (1) (A) (2) (III) of that statute indicates that individuals be informed of the option to refuse administration of the product.
Cominarty is the only fully approved vaccine product for use, but not available yet.
So to be consistent with law per the EO, individuals have the right to refuse EUA products.
This doesn't solve your original question, but may be enough to buy time, i.e., you should be able to be allowed to wait for Cominarty to roll out, without being penalized.
"President Joe Biden is using what one court opinion called “the most dramatic weapon in OSHA’s enforcement arsenal” to back up his COVID-19 vaccine mandate for employers with 100 or more workers.But relying on this bureaucratic weapon could be a risky strategy in the face of litigation threats, since courts have struck down all or part of the Occupational Safety and Health Administration’s emergency regulations in four of the six legal challenges so far.
Before OSHA issued an emergency COVID-19 regulation for health care workers in June, the agency’s last such emergency regulation was struck down in court in 1984.
In 1983, OSHA issued an emergency temporary standard lowering the permissible exposure limit to asbestos. The agency claimed that 80 workers would die from exposure to the substance over six months if the rule wasn’t in place.
The 5th U.S. Circuit Court of Appeals did not buy the government’s argument, however. In the case of Asbestos Information Association v. OSHA, the federal appeals court invalidated OSHA’s emergency temporary standard, partially on the grounds that the agency did not provide sufficient support for its claim."
Congress did not grant the Occupational Safety and Health Administration the authority to mandate vaccines, according to a pending report by two Heritage Foundation researchers—Doug Badger, senior fellow for domestic policy studies, and Paul Larkin, a senior legal research fellow. (Heritage is the parent organization of The Daily Signal.)"
p.s. I’m not aware of any filed cases either. There is an equal protection fight going on per illegals not being required to be vaxed, I believe, which does you no good.
You can thank our spineless republicans for not challenging this. If you recollect, the purported muslim ban and daca rescission were quickly put to “judicial review”.
You’re talking about the OSHA mandate, which is different from the EO under the OFCCP applicable to federal contractors.
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