Recently, our partisan hack attorney general Mark Brnovich said businesses can require COVID-19 vaccines:
Private Arizona businesses can require their employees to be vaccinated against COVID-19 but must allow reasonable religious and medical exemptions under state and federal law, state Attorney General Mark Brnovich wrote in a legal opinion.
And they can impose vaccine requirements on patrons as well, as long as they provide reasonable accommodation for customers who can’t take a vaccine because of a disability or don’t discriminate against someone who won’t take a vaccine for religious reasons, the Republican wrote in Friday’s opinion.
They key here is that businesses and employers would bear the brunt of making the decision to impose vaccine mandates. The state of Arizona, led by Trump death cult Republicans, would not have the backs of businesses and employers wanting to require their employees to get vaccinated. “You’re on your own. Good luck.”
Last week President Joe Biden said he would have the Occupational Safety and Health Administration (OSHA) issue rules for large employers (100 employees or more) to require the option of either getting vaccinated or undergoing weekly testing for Covid-19. The federal government would have the back of businesses and employers wanting to require their employees to get vaccinated, something for which they have been begging. Littler Survey: Employers Increasingly Consider Vaccine Mandates as COVID-19 Delta Variant Spreads:
While the majority of employers surveyed (63 percent) are encouraging, but not requiring, vaccination, the calculus may be shifting given the rapid spread of the highly contagious delta variant and the universal accessibility of vaccines for U.S. adults. Nearly half of respondents (46 percent) say they are more strongly considering a vaccine mandate in light of the recent rise in COVID-19 cases. Only 22 percent say they have firmly decided not to institute a mandate.
All of a sudden our partisan hack attorney general Mark Brnovich decided to go the full George Wallace, standing in the school house door (with his nunchuks in hand) yelling “states rights!” Dude, it didn’t work for George Wallace, it’s not going to work for you.
We have been over this. I have explained at length that President Biden’s vaccination plan is not only constitutional, but is not even out of the ordinary. The law is clearly on his side. Historical Parallel Between Southern ‘Massive Resistance’ to Brown v. Board, And Trump Death Cult ‘Massive Resistance’ To Covid-19 Vaccinations.
Nevertheless, our partisan hack attorney general, who is running for another office, is compelled to engage in performance politics for the GQP crazy base of anti-science, anti-mask, and anti-xax Trump death cultists.
The Arizona Mirror reports, Arizona is the first state to sue over Biden vaccine mandate on private businesses:
Arizona Attorney General Mark Brnovich on Tuesday filed the first lawsuit against the Biden administration’s upcoming COVID-19 vaccine mandate for private companies with at least 100 employees, arguing that the federal requirement violates the U.S. Constitution.
In the legal complaint, Brnovich argues that the vaccine mandate President Joe Biden announced last week violates the Equal Protection Clause, claiming it bypasses the rights of citizens to their bodily integrity and subverts Congress’ authority by exercising powers reserved for legislators, not the executive branch.
Brnovich — who is running for the GOP nomination for U.S. Senate to challenge Sen. Mark Kelly — also argues that the administration requirement favors undocumented immigrants over American citizens by allowing immigrants to decline the vaccine.
“Although the precise contours of the federal vaccination mandates are not yet clear, the violation of the Equal Protection Clause is already evident and egregious,” the complaint states. “In a nutshell: unauthorized aliens will not be subject to any vaccination requirements even when released directly into the United States (where most will remain), while roughly a hundred million U.S. citizens will be subject to unprecedented vaccination requirements.”
Wait a minute, anti-vaxxer crazy is not enough? Brno is trying to turn this into a two-fer with anti-immigrant hysteria too?
Somewhat surprisingly, Laurie Roberts at the Arizona Republic fka the Arizona Republican, is doing the right-wing echo chamber for Brno. Biden mandates COVID-19 vaccines for American workers but gives border crossers a pass? Maybe she should check her Fox News feed more often. Federal government to require COVID-19 vaccination proof from immigrants where applicable:
The U.S. Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS) agency announced on Tuesday COVID-19 vaccine requirements for immigrants looking to enter the country.
USCIS has updated guidance which will require applicants subjected to an immigration medical examination to prove health-related grounds of admissibility by being fully vaccinated for COVID-19. The requirement will go into effect on October 1, 2021 and comes as thousands of Afghan refugees are expected to resettle in the United States.
The requirement will be added to policy which already dictates immigrant applicants must prove they are free from any conditions which would make them inadmissible. Physicians who serve as civil surgeons conduct medical examinations and review vaccination records.
These civil surgeons will now require documentation from immigrant applicants proving they have been fully vaccinated before performing medical examinations.
Civil surgeons will be allowed to apply blanket waivers for cases where immigrants are not age appropriate [under 12] or in cases where it would cause significant delay for the applicant to receive the vaccine according to USCIS.
This is part of the administrative rule making process that President Biden set in motion just last week with his vaccination plan. Do they think rule making happens overnight? This is pretty damn fast, in my experience. So quitcherbitchin with this bullshit I say.
Back to the Arizona Mirror:
Under the pending federal requirement, more than 80 million employees of private businesses in the U.S. will be required to get vaccinated against COVID-19 or undergo weekly testing.
See, not really a vaccine mandate but an option. I wish the media would get this right.
The requirement for businesses will be enacted through a new rule in the coming weeks from the Department of Labor’s Occupational Safety and Health Administration, or OSHA.
That rule will require all employers with 100 or more employees to ensure their workforce is fully vaccinated, or to require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work, according to a summary released by the administration.
Employees would have time to get a vaccine if they have not done so already, likely in line with the 75 days that federal employees will have to get the one- or two-shot vaccines.
Any companies that do not enforce the rule could be issued fines of up to nearly $14,000 per violation, according to a senior Biden official.
The “mandate” is expected to face additional legal challenges from Republican officials. Several other Trump death cult governors, including Georgia Gov. Brian Kemp, have threatened lawsuits, and the Republican National Committee has said it intends to challenge the federal requirement [it does not have standing to sue. This is performance politics for the GQP crazy base.]
Under normal circumstances, this lawsuit would quickly be dismissed for the partisan performance politics that it is. But thanks to radical Republicans packing the federal courts over the past four years, Brnovich can forum shop for a conservative activist judge to disregard the law and make a partisan political ruling in his favor.
Sure enough …
UPDATE Federal Judge Michael Liburdi, former Ducey general counsel, assigned to new Brnovich lawsuit vs Biden pic.twitter.com/LYZpfwJM5y
— Brahm Resnik (@brahmresnik) September 15, 2021
Before he was Governor Ducey’s general counsel, this Republican hack attorney was part of the GOP Red Map team that tried to rig Arizona’s redistricting in 2011, and got his ass handed to him, losing a series of lawsuits that only strengthened the Arizona Independent Redistricting Commission.
Now he is on the court, where he can use his position to make partisan political rulings.
Pro Tip: Lawsuits about the current redistricting plan are in the offing in the not too distant future. If any of these cases are assigned to Liburdi, the parties should move that he recuse himself from hearing these cases, based upon his obvious bias working for the GOP Red Map team a decade ago.
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NY Times “The U.S. makes coronavirus vaccinations mandatory for new immigrants.”, https://www.nytimes.com/2021/09/15/us/politics/us-immigrants-covid-vaccine-requirement.html
There goes that right-wing anti-immigrant talking point.
I spent 30 years doing labor and employment law as a specialty, and I too say the Biden plan is well within the law. Our partisan hack attorney general is full of shit. “Employment law attorneys say Biden vax edict legal”, https://azcapitoltimes.com/news/2021/09/13/employment-law-attorneys-say-biden-vax-edict-legal/
Gov. Doug Ducey says it’s illegal and “will never stand up in court.”
And Attorney General Mark Brnovich says it is taking “federal overreach to unheard of levels.”
But attorneys who specialize in labor law say the decision by President Biden that large employers must have all workers vaccinated is well within the power of the federal government. And companies that listen to the Republicans and ignore the requirement could find themselves facing stiff fines.
–
Shefali Milczarek-Desai, director of the Workers’ Rights Clinic at the University of Arizona College of Law, said the actions by the administration are neither as questionable nor as outrageous as the Republican politicians contend.
The key is that the plan is rooted in the authority of OSHA to ensure that employers have safe workplaces.
“Not only is this something that OSHA can do but it’s something OSHA’s always done in the past,” she said.
The key Milczarek-Desai said, is a federal statute that allows for emergency temporary standards “when workers are exposed to ‘grave danger.’ ”
“The exposure here can be toxic substances, it can be something that is physically harmful,” she explained.
“Or, interestingly, the statute also says ‘from new hazards,” said Milczarek-Desai who also is a practicing attorney. “And that can be where Covid is coming in.”
Attorney David Selden agreed.
“They do that under the ‘general duty’ clause which requires that all employers have a workplace free of recognized hazards that can cause serious injury,” he said. And while that may be “ill-defined,” Selden said it’s broad enough to sweep in Covid-related issues.
It is true, he said, that Arizona has its own OSHA plan and program, funded in part by the federal government and administered by the state Industrial Commission. But he said that does not make Arizona free to ignore federal rules, as the federal law requires the state program be “at least as effective” as the federal plan.
“Once federal OSHA adopts a standard, it will be mandatory for Arizona to enforce the same standard,” said Selden who normally represents employers in legal issues, including OSHA compliance.
Attorney James Barton, who represents worker interests, said he believes legal efforts to void the mandate will fall flat, given the agency’s statutory duties.
“I think you’d have a hard time saying that this language isn’t about workplace safety,” he said. “It sure seems like it is to me.”
Nor is this unprecedented.
“There have already been OSHA reviews and inspections based upon Covid protocols,” said Selden. “We have situations, even in Arizona, where an employee may make a complaint to OSHA.”
Milczarek-Desai said it is up to OSHA to show that there is that risk of “grave danger” when workers have to be in proximity with others who are not vaccinated. And if that’s the case, Milczarek-Desai said, requiring vaccinations “is something that comes within OSHA’s purview.”
“It’s a health and safety measure that impacts the workforce,” Barton agreed. “To me, it doesn’t seem any different than any other health and safety measure.”
Barton also noted there is an alternate option: weekly testing.
“So it doesn’t mandate vaccines,” he said. And Barton said there always are the requirements for accommodations to be made in cases where there are medical reasons or someone’s sincerely held religious belief.
If there is a potential weak point in the plan, Selden said it is that fact that is will apply only to companies with 100 or more employees may provide some basis for a challenge.
“A worker in a workplace with 75 employees could be exposed to the exact same risks as someone who works for someplace with 101 employees,” he explained.
“Why would there be a different standard for one than the other?” Selden continued. “That kind of gives the appearance this is a politically driven thing rather than pure safety because every worker should be entitled to protection, particularly when the grounds for this are that it’s a grave risk.”
[WRONG, Dave. While I agree with your last point that “every worker should be entitled to protection,” this rule is aimed at large employers for the moment. Smaller businesses will be added later as this rule will be expanded. I know that you understand this.]
Barton, however, said he thinks the exemption for smaller firms might be upheld.
He said that precedent has been set in other laws. For example, federal statutes on age and race discrimination apply only to companies with 15 or more employees.
Milczarek-Desai said there’s something else that could become an issue.
Take, for example, a company that has more than 100 employees but most of them work from home. She said the firm might be able to make a case for an exemption.
But Milczarek-Desai said she expects challenges “to be quite limited in scope.”
Laurie Roberts attempts to redeem herself, “Mark Brnovich has transformed the AG’s office into his Senate campaign office”, https://www.azcentral.com/story/opinion/op-ed/laurieroberts/2021/09/08/mark-brnovich-transformed-ag-office-into-campaign-vaccine-opinion/5767995001/
(excerpt)
Brnovich has been on a tear of late, working to out-Republican the competition in a crowded Senate GOP primary.
The man’s a fixture on Fox as he fires off warnings to Washington about the state’s sovereign right [“states rights!”] to bar schools from doing anything to slow the spread of a highly contagious virus and the state’s sovereign right [“states rights!”] to do a door-to-door audit of last year’s election [unlawful voter intimidation and harassment], if that’s what it takes to satisfy Republican conspiracy peddlers.
[Wait, wasn’t this canvass supposedly done by a group of MAGA/QAnon election truthers not authorized by the Arizona Senate? Is Brno giving up the lie that Karen Fann farmed out this unlawful canvass to these MAGA/QAnon election truthers to try to maintain plausible deniability after the DOJ warned the Senate NOT to do this canvass?]
Last month, he threatened Maricopa County with the loss of nearly $700 million unless it turns over anything and everything sought by the Senate President Karen Fann and her ninja auditors.
[Brno is in effect threatening to “defund the police” in practice. This money goes to police, fire, emergency responders, and the criminal justice system. The billboards write themselves.
Again, Laurie Roberts, “Would audit-crazed Republicans really defund Maricopa County’s entire criminal justice system?”, https://www.azcentral.com/story/opinion/op-ed/laurieroberts/2021/08/26/audit-crazed-gop-threatens-defund-maricopa-county-criminal-justice/5607332001/. “Forget defunding the police. Audit-crazed Republicans are now threatening to defund Maricopa County’s entire criminal justice system in order to chase the fairy tale that Trump was robbed.”]
[B]rnovich acknowledges that the state law [banning mask mandates and vaccine mandates] isn’t yet in effect [and is being challenged in court] and that Ducey’s executive order is a blocking maneuver.
Pro Tip: One cannot violate a law that is not yet law. The Constitution forbids ex post facto laws. And didn’t GQP legislators in the Arizona legislature try to strip Gov. Ducey of his emergency powers over Covid-19 this past session? So what, now they are cool with Gov. Ducey acting like a tinpot dictator telling local governments and school districts that they must comply with his tinpot dictator edicts, and ignore federal health guidelines on Covid-19 to save lives because “states rights!”? And federal law is supreme to state laws. See the supremacy clause of the Constitution (we fought a Civil War over this). Brno is not a very good lawyer.
Continued:
According to a new poll by HighGround, a Republican polling firm, a majority of likely Arizona voters believe Ducey and the Legislature got it wrong.
Fully 57% of them said masks should be required in schools and government buildings, and 52% said schools and local governments should be able to require that their employees be vaccinated, including 87% of Democrats and a clear majority of independents.
But just 26% of Republicans agreed with mask mandates and 25% of Republicans agreed with vaccine mandates.
Which pretty much tells you all to know about how Brnovich, candidate for the U.S. Senate, came the conclusion that Tucson is violating a law that isn’t yet a state law.
“It is self-evident,” he writes, “that any negative side effects of a vaccine will not be undone merely on the general effective date of legislation,” Brnovich writes.
Is that a legal opinion? Or a campaign pitch?