Coronavirus and Walt Disney World general discussion

[Lilofan]

I really hope the judges follow the law and Constitution. It shouldn't matter that I like the idea of the policy.

Covid has impacted our country , our family, friends and loved ones including probably judges ruling on these decisions. They surely have got a weighted chest feeling .

 

[Andrew C]

Covid has impacted our country and our family, friends and loved ones including probably judges ruling on these decisions. They surely have got a weighted chest feeling .

They should not allow any of that to get in the way of their decision. Their job is to rule based on law, not emotion.

 

[Lilofan]

They should not allow any of that to get in the way of their decision. Their job is to rule based on law, not emotion.

I get it and that's part of that oath they took.

 

[sullyinMT]

Since this will be an agency rule/regulation, it's going to take time. Numerous rules in the previous administration were struck down by the courts when the agency bypassed the process, NOT on the merits of the rule. Most people never got that. I used to work for the Federal Government, process is EVERYTHING.

Most of those rules were tossed on the third step below. They couldn't document a case on why the rule needed to be place in the first place so it seemed arbitrary.

Federal Procedure for Adoption of Rules​

According to the Federal Administrative Procedure Act, the rules promulgated by administrative agencies must undergo certain procedures. There are certain criteria/steps to be followed by an administrative agency before the adoption of rules. They are:

• Notice;
• Comment and hearing;
• Adoption of new rule;
• Publication of new rule.

The first and foremost step to be followed by an agency is the issuance of notice. A notice of proposed rulemaking must contain some elements such as statement of the time, place, and nature of public rule making proceedings and reference to the legal authority under which the rule is proposed. Any failure to publish a notice of the proposed rulemaking in the Federal Register will automatically invalidate the ensuing rule.[ii]

Secondly, an agency is required to provide a meaningful opportunity for comments.[iii] However, the public do not possess any opportunity to comment on every bit of information that influences the decision of an agency.[iv] It is to be noted that, to give everyone a chance of hearing in rulemaking is highly impractical. In rulemaking, a trial form of hearing is not required.[v]

Third step is the adoption of new rule. A new rule promulgated by an administrative agency must contain adequate statement of the basis and purpose of the rule. Under the Federal Administrative Procedure Act, a rule can be made invalidated by a reviewing court if an agency fails to explain the rule satisfactorily. The statement must prove that the rules are based on the relevant factors, and not arbitrary.

The final stage is the publication of new rule. Legislative rules must to be published in the Federal Register as per the Federal Administrative Procedure Act. It is the duty of the government to inform the public by publishing the matters that can adversely affect a member of the public.[vi] Generally, the publication of a legislative rule must be made thirty days prior to its effective date in order to assist affected persons by giving them enough time to prepare for the effects of the rule.

Yeah, nobody reasonably expects this to start Monday. Yesterday’s speech was probably meant to kickstart some businesses to get off the pot and make their own rules. It was effectively a notice to the public at large, an attempt to move the needle on vaccines in a positive way, but it’s going to be a long while before the words of yesterday are in any way a public policy.

 

[Andrew C]

Yeah, nobody reasonably expects this to start Monday. Yesterday’s speech was probably meant to kickstart some businesses to get off the pot and make their own rules. It was effectively a notice to the public at large, an attempt to move the needle on vaccines in a positive way, but it’s going to be a long while before the words of yesterday are in any way a public policy.

I will be interested in seeing what my company does. Very large. I wouldn’t be surprised if they make us all get vaccinated. I’m already done so doesn’t affect me directly.

 

[drizgirl]

I really hope the feds win in that they are looking out for the whole country in this pandemic whereas the states rightly so are only concerned with their state residents. Whatever the decision this could spell a lot in the future employment of some.

If that's the criteria, then the states won't be left with any rights at all.

 

[GoofGoof]

They should not allow any of that to get in the way of their decision. Their job is to rule based on law, not emotion.

That’s exactly what I’ve been saying. They will look at the law, past precedent and the authority the agency actually has. They should leave out emotion and politics and rule based on legal authority. That’s why off the cuff comments by a politician shouldn’t and likely won’t factor into any judge’s ruling.

 

[GoofGoof]

Yeah, nobody reasonably expects this to start Monday. Yesterday’s speech was probably meant to kickstart some businesses to get off the pot and make their own rules. It was effectively a notice to the public at large, an attempt to move the needle on vaccines in a positive way, but it’s going to be a long while before the words of yesterday are in any way a public policy.

This exactly. Corporations could enact a vaccine mandate tomorrow and use this plan as the basis for the decision. Remember that OSHA will not be requiring any individuals to do anything. They will be requiring companies to provide a safe working environment so the trigger to require weekly testing or vaccination of an individual will be pulled by the corporations when they see fit. If they wait they will have to comply by the time the rule goes into effect but there’s nothing stopping them from acting sooner.

 

[JoeCamel]

I understand your being torn on the issue. Others have laid out the precedent for OSHA and CMS rules, which have been around with bipartisan court precedent since long before our current situation. I also found the quotes from Justice Harlan, shared by @MisterPenguin last night align pretty well with what it means to have individual freedom vs a functioning society and economy. He inspired me to do a little reading on the justice, and I found the potential parallels to today quite fascinating. Prior to serving on the Supreme Court, he was a Republican AG of Kentucky and a defender of civil rights when that was a lonely position to have. In the 1905 decision of Jacobson v Cambridge, he wrote, "Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others."

My being miffed, though, has a hierarchy. First, the anti-vaxx movement and the social media/private broadcasting platforms that have profited from people's (at first) legitimate concern or curiosity. They shouldn't have been allowed to feed the algorithm and fear to open this door so wide in the first place. I'm somewhere between angry and apathetic and the individual holdouts, depending on their level of indignation and vociferousness. But their sources of "information" and "research" have a special ring of brimstone awaiting them. Then I place state officials who are actively standing in the way of school boards and businesses from operating in the way they best see fit. I wish they'd move aside and let the free market decide what it wants. Allow businesses to set their employment standards and see which cream rises to the top, and which businesses lose out due to lost productivity, employee hospitalization, and death. Next, I'm angry at whichever businesses are lurking in the shadows, excited at this announcement but unwilling to step up like Disney, United, and Delta to a lesser but significant degree. Hiding behind government action as the reason for their rules only opens the door to more governmental power, as opposed to taking the bull by the horns themselves.

So, I'm not thrilled that it had to come to this. But the administration is where I place the least blame, and who gets the smallest slice of my discontent.

"Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others."

Smart dude, he got it. This should be an anthem or something and certainly taught in elementary schools

 

[Lilofan]

That’s exactly what I’ve been saying. They will look at the law, past precedent and the authority the agency actually has. They should leave out emotion and politics and rule based on legal authority. That’s why off the cuff comments by a politician shouldn’t and likely won’t factor into any judge’s ruling.

It will not stop someone being front and center trying to impress their donors, lobbyists, constituents , etc. Should it factor to influence a judge ? It shouldn't but a lot will do their best to influence and it sometimes works... A judge overruled a same sex ban marriage in a particular state years ago and then he was attempted to be thrown out as a judge by the then current governor.

 

[CaptainAmerica]

I understand your being torn on the issue. Others have laid out the precedent for OSHA and CMS rules, which have been around with bipartisan court precedent since long before our current situation. I also found the quotes from Justice Harlan, shared by @MisterPenguin last night align pretty well with what it means to have individual freedom vs a functioning society and economy. He inspired me to do a little reading on the justice, and I found the potential parallels to today quite fascinating. Prior to serving on the Supreme Court, he was a Republican AG of Kentucky and a defender of civil rights when that was a lonely position to have. In the 1905 decision of Jacobson v Cambridge, he wrote, "Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others."

My being miffed, though, has a hierarchy. First, the anti-vaxx movement and the social media/private broadcasting platforms that have profited from people's (at first) legitimate concern or curiosity. They shouldn't have been allowed to feed the algorithm and fear to open this door so wide in the first place. I'm somewhere between angry and apathetic and the individual holdouts, depending on their level of indignation and vociferousness. But their sources of "information" and "research" have a special ring of brimstone awaiting them. Then I place state officials who are actively standing in the way of school boards and businesses from operating in the way they best see fit. I wish they'd move aside and let the free market decide what it wants. Allow businesses to set their employment standards and see which cream rises to the top, and which businesses lose out due to lost productivity, employee hospitalization, and death. Next, I'm angry at whichever businesses are lurking in the shadows, excited at this announcement but unwilling to step up like Disney, United, and Delta to a lesser but significant degree. Hiding behind government action as the reason for their rules only opens the door to more governmental power, as opposed to taking the bull by the horns themselves.

So, I'm not thrilled that it had to come to this. But the administration is where I place the least blame, and who gets the smallest slice of my discontent.

Jacobson affirms State authority, not federal authority.

Minnesota could make people get vaxxed, but I'm not sure the Feds doing so would survive Constitutional scrutiny.

 

[DCBaker]

"Florida on Friday reported to the Centers for Disease Control and Prevention 17,854 more COVID-19 cases and three deaths, according to Miami Herald calculations of CDC data.

In all, Florida has recorded at least 3,409,012 confirmed COVID cases and 48,276 deaths.

In the last seven days, on average, the state has added 338 deaths and 14,326 cases to the daily cumulative total, according to Herald calculations of CDC data.

There were 12,651 people hospitalized for COVID-19 in Florida, according to the U.S. Department of Health & Human Services’ Friday report. This data is reported from 261 Florida hospitals. That is 383 fewer patients than Thursday’s report, which also had two less reporting hospitals.

COVID-19 patients take up 21.51% of all inpatient beds in the latest report’s hospitals, compared to 22.36% in the previous day’s reporting hospitals.

Of the people hospitalized in Florida, 2,942 people were in intensive care unit beds, a decrease of 107. That represents 44.48% of the state’s ICU hospital beds from 261 hospitals reporting data, compared to 46.03% the previous day."

https://www.miamiherald.com/news/coronavirus/article254138753.html

 

[mmascari]

The limits of said authority will certainly be tested in court. I have not read the laws which govern OSHA so I won't opine about the outcome but I guarantee it gets tested.

Somewhere right now, a company lawyer is discussing with a CEO what their options are to argue that they're not creating an unsafe workplace by not requiring vaccination or testing. They're telling them how the other side will present that not doing either of those directly created a hazardous workplace that directly impacted someone. It'll be an interesting discussion, but I'm not sure how they come up with an argument that sounds better.

I assume OSHA has the resources to deal with non compliance?

im not against mandates. I just think they should come from the states as they typically can do more and have more authority in all areas.

Probably not. But, it doesn't matter. It's a risk exposure. Companies can gamble, but most don't like to gamble with easily mitigated liability exposure.

If someone files a complaint, maybe. But they certainly won’t be able to arbitrarily conduct audits and surveys. Much like CMS can’t conduct arbitrary hospital surveys to confirm the conditions of participation, it’s done through the complaint and reporting system. CMS even has to hire outside private agencies to conduct the required three-year surveys.

Yeah. That’s kinda my point. Seems like a threat with no backbone.

Oh, there might be some consequences for some, but I suspect nothing more severe than what we see from OSHA or CMS currently. Nobody is going to want to put a company out of business.

None of those, or any OSHA fine is the real risk. It's the liability exposure of creating an unsafe work environment when someone is harmed.

Say you have a construction site and ignore the hard hat rules. Maybe you get fined, maybe nobody notices. But, say someone gets hit in the head and has serious consequences, maybe they die. Their family sues for having an unsafe work environment that directly lead to the death. They'll present in court that they knowingly violated the OSHA rules showing that created the unsafe condition and that condition directly lead to the death. If their loved one had been wearing a hard hat, they wouldn't have died.

Now change that story to COVID case or death. The loved on isn't going to care at all about putting a company out of business. That's the liability question companies will need to think about. Most will simply mandate the vaccine or testing so they can say they're compliant and did everything required to mitigate the risk and there's no case at all here. It's the cheapest liability mitigation ever.

Some companies will gamble that this scenario never happens. Some will win that gamble, and some will lose.

 

[Parker in NYC]

Can we all agree that the philosophy of voluntary compliance that’s been touted since day one is officially ridiculous? People refused to socially distance, mask up, or get the vaccine during a pandemic. As of this summer, 80 million people were unvaccinated. Proudly, too!

Personal responsibility is a joke.

 

[sullyinMT]

Jacobson affirms State authority, not federal authority.

Minnesota could make people get vaxxed, but I'm not sure the Feds doing so would survive Constitutional scrutiny.

It's an important distinction, to be sure. Arguments could be made that people are far more mobile, crossing state lines far more regularly than they did in 1905. Therefore, like a standard minimum set of highway regulations for driver safety, workers should expect some minimum standard of workplace safety. Undoubtedly that's why the labor department was chosen over some other ethereal thing like vaccinated air travel (which people could avoid simply by not flying). There is more airtight authority over DoD and the executive agencies than anything else laid out yesterday.

This case will be more about what OSHA's role is, exactly. And whether the threat of illness, no matter how great, gives the agency emergency powers to regulate vaccination/testing. The rule, as it was laid out in Biden's speech yesterday, does not mandate vaccines for workers and gives an out clause via weekly testing while the pandemic remains a threat. Much like the SCOTUS decided that the CDC doesn't really have any jurisdiction over eviction proceedings, it could be decided that OSHA doesn't have pandemic authority. Though there are illness/exposure protections like asbestos abatement, mining regulations, MSDS sheets that often double as Charmin.

More importantly, perhaps, this gives "cover" to employers who wanted to do this but haven't for fear of backlash. It's a spineless approach by those businesses, imo, but one that will get more people vaccinated. Even if the OSHA case fails, individual employers have a long precedent in their favor. And a growing one against current attempts to ban mandation of the COVID vaccine.

 

[MisterPenguin]

Jacobson affirms State authority, not federal authority.

Minnesota could make people get vaxxed, but I'm not sure the Feds doing so would survive Constitutional scrutiny.

You are right. Law treats people as wards of the state, i.e., their local State of the Union.

The state has great interest in not micromanaging everyone's every waking moment, and lets their citizens operate on their own cognizance. Additionally, State Constitutions and the U.S. Constitutions grants all citizens certain rights that the Federal and/or State government cannot infringe upon (within reason).

The Federal powers over citizens are only those listed in the Constitution (which has priority over State laws). Tho, that power has been greatly expanded over the centuries through practice and jurisprudence (e.g. Congress's right to regulate interstate commerce has led to a very wide range of regulatory powers).

So, that being said, at this time, the Feds aren't mandating the vaccine on citizens as citizens, they are mandating it as a requirement for employment. People don't have a right to be employed by the Federal government.

As for private companies, it's OSHA that is giving the workplace safety mandates of vaccines or testing. Employees can opt out of vaccines by being tested.

So, as far as the legalese can thread the needle, no one is being forced by the Feds to get vaccinated. They can opt out by resigning from their Federal job, or, by opting to be tested at their private place of employment.

 

[CaptainAmerica]

It's an important distinction, to be sure. Arguments could be made that people are far more mobile, crossing state lines far more regularly than they did in 1905. There is more airtight authority over DoD and the executive agencies than anything else laid out yesterday.

This case will be more about what OSHA's role is, exactly. And whether the threat of illness, no matter how great, gives the agency emergency powers to regulate vaccination/testing. The rule, as it was laid out in Biden's speech yesterday, does not mandate vaccines for workers and gives an out clause via weekly testing while the pandemic remains a threat. Much like the SCOTUS decided that the CDC doesn't really have any jurisdiction over eviction proceedings, it could be decided that OSHA doesn't have pandemic authority. Though there are illness/exposure protections like asbestos abatement, mining regulations, MSDS sheets that often double as Charmin.

More importantly, perhaps, this gives "cover" to employers who wanted to do this but haven't for fear of backlash. It's a spineless approach by those businesses, imo, but one that will get more people vaccinated. Even if the OSHA case fails, individual employers have a long precedent in their favor. And a growing one against current attempts to ban mandation of the COVID vaccine.

In 1983, a similar OSHA Emergency Temporary Standard regarding asbestos was struck down.

The requirement for an ETS is that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards" and that "such emergency standard is necessary to protect employees from such danger."

If Joe is vaccinated, he is not at "grave danger" from COVID, even if his colleague, Sally, is not vaccinated. Therefore, forcing Sally to get vaccinated fails this test.

 

[FanforDisney]

Funny to see. Social media 101. One person falsely reports something and hundreds over react and foam at the mouth for no reason.

It was a White House official who told the Washington Post concerning it. And the Washington Post put out an article stating that.
So I guess the person that started it was a White House official (not surprisingly) who got it wrong.

 

[Patcheslee]

Yeah, nobody reasonably expects this to start Monday. Yesterday’s speech was probably meant to kickstart some businesses to get off the pot and make their own rules. It was effectively a notice to the public at large, an attempt to move the needle on vaccines in a positive way, but it’s going to be a long while before the words of yesterday are in any way a public policy.

The portion concerning federal contractors says the task force will release guidance by Sept 24th and "agents" whoever that refers to should begin October 8th.
I wouldn't expect the OSHA applicable businesses to be required to implement before the federal contractors.

 

[CaptainAmerica]

As for private companies, it's OSHA that is giving the workplace safety mandates of vaccines or testing. Employees can opt out of vaccines by being tested.

So, as far as the legalese can thread the needle, no one is being forced by the Feds to get vaccinated. They can opt out by resigning from their Federal job, or, by opting to be tested at their private place of employment.

Yes, I was loose with my language. Even though this is not a Federal vaccination mandate, there are still rules that OSHA has to follow when issuing Emergency Temporary Standards. See above.