But then after it got re-upped is where the administration ran into problems. The challengers wanted them to step in immediately and end it and they didn’t. Remember initially they didn’t step in when it looked like the eviction moratorium was going to sunset. Does that give us some sense of the way they might look at OSHA rules? Miller: I’m curious because I’m glad you brought up the CDC question there about the nationwide eviction moratorium because that was a case where The Supreme Court basically was not deferential to presidential, executive branch power during this pandemic. This is more about general health and they’re using a workplace safety law to try to get it a larger public health issue. I think the gist of the argument against the OSHA Rule, when it comes out, will be that this is not really about workplace safety. There is explicit authority for OSHA to take certain emergency actions in the workplace. There’s nothing specifically in the law explicitly authorizing CDC to do that. Unlike earlier this year, we had the debate over whether the CDC could issue the eviction moratorium. Oleske: It is and I didn’t want to indicate that I’m skeptical. Is it possible that this could go all the way to the U. Miller: But it seems like you’re a little bit more skeptical about the possibility of the OSHA mandate staying in place. I expect similar types of challenges to be brought against the Governor’s Executive Order and the OHA Rules, although my suspicion is that they will not be successful challenges. But the initial challenge brought was that the government - the Governor - did not have the authority. The Oregon Supreme Court ultimately rejected that challenge. Lawsuits were brought against the Governor saying she was exceeding her authority. That was actually, you may recall Dave, the essence of the challenge back when the Governor announced limitations on gathering sizes in the beginning of the pandemic. And that last point is important because a lot of these challenges to whether it’s what Governor Brown is doing here or Governor Inslee is doing in Washington will make the argument that the Legislature has not authorized the Governor to act in the particular area. Whereas our state governments are generally viewed as having sweeping police power that, so long as the Legislature has granted power, can be exercised. Our federal government is a government of limited powers. But then there are more specific rules at lots of the state levels including here in Oregon and in Washington. So of course, the President announced that OSHA is going to be coming up with a rule requiring employers of over 100 employees to either require vaccines or testing. Jim Oleske: It depends on whether you’re talking about the federal level and the state level and the challenges are going to be different. In general, how solid is the legal ground for a workplace-based vaccine mandate? But I think it’s fair to say that all of them have either been challenged or they’re going to be facing legal challenges. We don’t have time to get into all of the different workplace mandates that have been put into place now at the federal and the state levels. We’re talking about that intersection in the context of a global pandemic.īefore we get to the religious exemption part of this, I just want to start briefly with the mandates themselves. His research focuses on the intersection of religious liberty and other constitutional values. Jim Oleske is professor at Lewis and Clark Law School. Tens of thousands of people around the country seem to be seeking them right now as a way to not have to get vaccinated. There are variations from place to place, but many of them include some version of a religious exemption. The following transcript was created by a computer and edited by a volunteer.ĭave Miller: In the last few weeks, individual employers and states and the federal government have all announced various workplace-based mandates for COVID-19 vaccinations. According to the Oregon Bureau of Labor and Industries, “employers with mandatory COVID-19 vaccine policies will need to consider requests for exceptions for individuals with either (1) sincerely held religious convictions, or (2) a disability that prevents them from receiving a COVID-19 vaccination.” But how do those religious exemptions work exactly? And how can an employer determine if someone’s convictions are “sincerely held”? We dig into the details with Lewis and Clark Law professor Jim Oleske. The State of Oregon and many private employers are requiring workers to get the COVID-19 vaccine.
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