Countdown Begins: Biden Mandate Goes Before SCOTUS

Today on Sekulow, the countdown begins as Biden's vaccine mandate heads to the US Supreme Court. Keeping you informed and engaged, now more than ever, this is Sekulow. We want to hear from you. Share and post your comments or call 1-800-684-3110.

And now your host, Jordan Sekulow. This morning at 9am, the ACLJ representing the Heritage Foundation filed our reply brief to the US Supreme Court opposing the Biden vaccine mandate that begins tomorrow. Now we'll go through the key parts about how it goes into effect and what parts go into effect tomorrow. There's no penalties on the specific vaccine part of this larger OSHA rule until February 9th, but we also want to hear from you. What's your employer doing? What are you having to do? Because though the court's hearing the case in a special oral argument on Friday, they did not prevent the beginning of this from going into effect tomorrow.

So we'd love to hear from you 1-800-684-3110. Is your employer saying bring your card tomorrow if you have a vaccine or do you have to do a test? And we're seeing of course across the country a lack of available testing. So how do you even comply with this mandate in a way where you can keep going to work without having almost forcing businesses to shut down? Not because they say there's an employee who's sick, but because they cannot take the test and can't comply. So this again will all be before the Supreme Court on Friday.

As you know we represent the Heritage Foundation and this is very unique because they're doing the case dad on a Friday before they actually start their term on Monday. Yeah, which is highly unusual, but this entire process frankly has been highly unusual because they have not granted a stay and technically the law goes into effect today or tomorrow, excuse me, on the 4th. So you have to make, although the penalties don't come into play until February, you have to make what is called a good faith attempt to comply with the law, which is very subjective.

But clearly you have to do something in order to avoid penalties which will be applied by February 9th unless the court declares this unconstitutional or issues of the stay. I think you're right and so I think the employer will have to make some affirmative steps toward applying, I'm sorry, complying with the rule and failure to do so could result in penalties. But I also think employers will also have to engage in some research because if they are going to allow employees to engage in testing the question becomes are sufficient testing kits available and I think the answer is no. And lastly let me point out as I understand it Anthony Fauci has said that you may need to take up to three tests three tests in order to comply. Yeah it's because the way that the tests are picking up this variant and we've had a lot of people out here at our facilities at our studios. I'd like to know also what's going on in your area, in your office, in your business, in your factory, where you work, where you run your business.

Give us a call at 1-800-684-3110. We'll take all those calls, we'll give you a sense of what we expect from the Supreme Court. All the briefs as Jordan said have filed which raises something I want to say to all of our members and I know I'm speaking for Jordan and the rest of our team on this. We have to say and we are delighted to say a huge thank you to our ACLJ members. December 31st which is our biggest day of the year. This year it was not only the biggest day of the year as far as fundraising goes for the ACLJ, our online fundraising on December 31st was the largest it has ever been. In other words it was the largest day of the year financially for the ACLJ in our history.

That doesn't happen without you. So I want to say on behalf of everybody you see, all the lawyers you don't see, the production staff you don't see, the social media staff you see what they post, you see the content creation, but from all of us from me and Jordan, Logan, Harry, everybody thank you. Thank you for standing with the American Center for Law and Justice. Really had a great year because of your support and we've got some big initiatives we'll be announcing in the weeks ahead. But our team worked right through the holidays to get this brief done to the Supreme Court. Yeah that's absolutely right and folks again a huge thank you to everybody out there who supported our work throughout the year and as that work continues. I mean the work did not stop throughout from New Year's to New Year's Day because of this case obviously the Supreme Court work we've got going on all around the world. ACLJ.org a huge thank you to our supporters. Biggest day ever, biggest year ever.

Be right back. The challenges facing Americans are substantial at a time when our values, our freedoms, our constitutional rights are under attack. It's more important than ever to stand with the American Center for Law and Justice. For decades now the ACLJ has been on the front lines protecting your freedoms, defending your rights in courts, in congress, and in the public arena.

And we have an exceptional track record of success. But here's the bottom line, we could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms.

That remains our top priority especially now during these challenging times. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well this is the perfect time to stand with us at ACLJ.org where you can learn more about our life-changing work. Become a member today ACLJ.org.

Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life. Request your free copy of Mission Life today online at ACLJ.org slash gift.

All right, welcome back to Secular. We are taking your phone calls too at 1-800-684-3110. As the mandate, technically it goes into force tomorrow. Now if you're an employer, it's a good faith enforcement when it comes to the vaccine portion of this mandate.

These are for a hundred or more employees. And even it goes to the point, we put this in our brief, and OSHA said if you have only two people that go into an office, but 98 who work in remote locations, this applies to you. Now how it applies to you is still trying to be figured out by everybody because are the people that don't ever go into the office, they still need to take a test at home and then send it in even though they're not exposing any of those two people in that hypothetical. That's their own hypothetical.

It's not ours. They put that in place to say that this is, again, it applies to you. So there's not ways around this, but we also know that there's a massive testing shortage in our country right now. So effectively, even if your employees who are not vaccinated are not showing any sickness or signs, you could be shutting down significant portions of companies. Most states, even with the most vaccine, about a third of people are not.

Well, here's what you've got right now. And like our office, we have a high vaccination percentage, but there are breakthrough cases to people that are vaccinated, including some of our department heads. And in those situations, they still have to quarantine, but I think it's now for five days, and then they're supposed to take a test. We're putting all those protocols in place. We also put in a very elaborate filtration system.

We have not had a breakout in the office, which has been good. However, President Biden has said publicly that there's no federal solution to this. I want you to listen to what, this is the words of the President.

Take a listen. There is no federal solution. This gets solved at a state level.

And I think that's right. And the state level actually may mean it gets solved at the local level because there could be a local situation different than the state situation. But clearly the states have the police power. If the states wanted to put in a vaccine mandate, they could do it. The federal government through OSHA just doesn't have that authority.

Now, everybody's trying to figure out that has a business, how do we start complying tomorrow? And one thing you could safely say about this law, and we're going to take your questions or this rule at 1-800-684-3110. But one thing we can say about this, Harry, it is far from clear what a good faith attempt at complying with this would actually mean.

Absolutely. So based on the record adduced so far, it's more than likely that it will be impossible to be assured that you are making a good faith attempt. I don't believe OSHA knows what a good faith attempt actually looks like in part because they have never regulated in this particular arena before. And so they don't have the staff, they don't have the experts, and in addition to all of that, as we suggest in our brief before the United States Supreme Court, this particular mandate exceeds OSHA's statutory authority. The statute only gives the secretary power to address occupational health and safety risk where?

At work. And so now OSHA is essentially trying to regulate health and safety risks that may indeed be encountered off site. And so at the end of the day, I don't see how this will work. And finally, just to repeat a point that you made earlier, Jay, it strikes me that it will be virtually impossible in the short run for the Biden administration to assure sufficient testing kits are available to the American people so that they can indeed comply. Well, and there's a complication on that, and that is not only tests not available, we picked up some, because some days they'll have them and you'll have them for like an hour, so you grab them. But this is what Dr. Fauci said about the home test, which may be what employees are using. Do at home rapid tests work to detect Omicron?

The answer is they do. And I think the confusion, Dana, is that rapid antigen tests have never been as sensitive as the PCR test. They're very good when they're given sequentially. So if you do them like maybe two or three times over a few day period, at the end of the day, they are as good as the PCR.

But when you do a one-time test, which is what's required under the mandate, they're not. And this is where this whole mandate is putting employers and employees in a very, very difficult position. We've got a lot of calls coming in. We want to know what your company is doing or what you're planning on doing in this unusual moment. Our brief has been filed with the Supreme Court of the United States, as we said. It was filed early this morning, had it be in by 10.

We got it in at 9, worked on it over the weekend. Let's go ahead and take a phone call though, Jordan. Let's go to Cory in Iowa on Line 1. Hey, Cory, welcome to Sekulow. You're on the air. Hey, how you doing today?

We're good. Hey, so here in Iowa, in several different locations, such as mine in Davenport, they've shut down. The schools are now closed. There's no road hazards and I called into the school. And apparently it's because as of today, they now have, throughout the state, a bus driver shortage along with a teacher shortage.

Yeah, so let me tell you what's happening on that front. So these are not imposed by the government. This is naturally occurring. We have in our offices a lot of people out too, because this particular variant spreads very easily. So if someone has it, we don't want them coming into the workplace, obviously, because what that does is then increases the spread. And so we're trying to avoid that and we've had good success so far, but a lot of schools in different parts of the country, I know my grandkids' schools were not supposed to start till Wednesday.

They are starting Wednesday, but they're doing it virtually. And the teacher shortage, again, this is not a government mandate. This is just fact. People are sick. I mean, no one can deny that people are getting sick from the coronavirus. What's going on right now is this variant doesn't seem to be as lethal as the others have been.

And as someone who lost a family member to this, it was very lethal. Well, I think what's also happened now is these testing requirements come into place because the symptoms can be more mild and people are vaccinated, even boosted, that they don't necessarily know that they're going to come back with a positive test. So you're seeing this issue with schools having a tough time reopening, not because the government. So this is the interesting part about this case before the court. I think that the government, it's shown that there's no need for the government to be involved in this mandating because whether it's a school district or a business or a restaurant, they're doing this already. If the people can't come, if they can't get enough staff or employees together to safely open the school or to run the restaurant, they have to close. And on the top of that, the fact that the tests are not available makes it very tough. You know, when you're trying to get back to normal, and that's supposed to be the quick way to figure out if you're not going to infect anybody, if you don't have symptoms and people can't get tests and there's a run on test every, you know, you find out what day they come in to the pharmacy or to the grocery store and everybody buys of that day and then they're gone for an entire week and the lines are hours long at testing centers. There's also a question in the mandate about whether or not the at-home test has to be done in person at the office because that's different than a drive-through test or the other tests.

So, I mean, there's a lot of questions. It's still the government. And like you said, they're changing the rules as you go. And that's not what OSHA is about. That is not, that does not help business in America figure out how to get back to work. Well, because we think the legal issue here is one of constitutional and statutory authority. Does OSHA as the Occupational Safety and Health Administration have the legal authority to put into place this mandate? In other words, the mandate comes down from the President through OSHA.

Is the OSHA as an agency of the federal government, do they have the authority to put that into practice? And I think that the clear answer to that, although I think it's going to be a very close case, is they don't. The statutory and constitutional issues are significant here. But if you just go with their authority issues, Commerce Clause issues, the federalism, state control of these kinds of police powers, I think it makes it a very difficult case. Having said that, the one thing that has us all, I think, and we've been doing Supreme Court practice for 40 years, but I think all of us are perplexed is, Harry, there were eight requests for a stay, including from our client, and none of those were granted.

I think that's correct. And the Supreme Court easily could have given an administrative stay, but they refused to do so, at least so far. And so then the query becomes, what is going to happen between January the 7th and January the 10th when compliance apparently is supposed to kick in unless the Supreme Court intervenes?

I think the economic impact of this, without a government, the government's not going to have to close down anything. Because what's happening is 3,000, 4,000 flights are being canceled, some weather, some staffing. We know that in our own office, and that's why I want to hear from other people what they're experiencing, that there are people that are sick and they're out. And if you're sick, we don't want you in. So what do you do in that situation? Well, I mean, that doesn't solve the mandate issue, which we're still trying to figure out how to comply with, like everybody else's. We'll make a good faith effort, which is what the law requires.

But it's very, very complex. We'll talk more about it. We'll take phone calls when we come back from the break.

Yeah, absolutely. To talk to us on the air, it's 1-800-684-3110. I'm here to see some questions here of things employees are asking to do that I haven't even heard about yet. So we'll get to Tim's call when we come back from the break.

1-800-684-3110 to talk to us on air. And a huge thank you to our ACLJ financial supporters. You made 2021 the biggest year ever financially for the ACLJ and the biggest day ever on New Year's Eve.

So a huge thank you to everybody who responded to those matching challenge requests, who supported the work of the ACLJ over 2021. Now we're into 2022, and we're at the Supreme Court on Friday. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, Planned Parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. The challenges facing Americans are substantial. At a time when our values, our freedoms, our constitutional rights are under attack, it's more important than ever to stand with the American Center for Law and Justice. For decades now, the ACLJ has been on the front lines protecting your freedoms, defending your rights in courts, in Congress, and in the public arena.

And we have an exceptional track record of success. But here's the bottom line, we could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms. That remains our top priority, especially now during these challenging times. The American Center for Law and Justice is on your side.

If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org, where you can learn more about our life-changing work. Become a member today, ACLJ.org. As we're at the Supreme Court on Friday, a special oral argument, the briefing just filed this morning by the ACLJ representing the Heritage Foundation, that will be up at ACLJ.org. Maybe while we're on the air, we'll work on that blog now. You can actually see the image, if you're watching the broadcast right now, of the reply brief that was filed.

The ACLJ team, of course, working through the new year and the holidays. As you know, last week, we were on the broadcast, but even through this weekend, because this was due today, 9 a.m., so that was filed. I want to go right to the phones, because one of the issues with this meeting, and this meeting, I want to go right to the phones, because one of the issues with this mandate, which technically goes into effect tomorrow, is that no one knows exactly how to comply, or what is good enough to comply. And Tim's got an interesting question on Line 1 from Missouri. Hey, Tim, welcome to Sekulow. You're on the air. Well, how's it going, fellas? Really enjoy the show. First I call it.

Thanks. Hey, the question I have is, my company is wanting a vaccine status declaration coming up on Thursday. And my question is, under any other circumstances, the way I understand it is through HIPAA or ADA compliant, you know, that type of compliance, or even as far as a Fourth Amendment privilege, that that is none of their business. So now the ruling, as I understand it, is that it's a carve-out for OSHA.

Now, if we don't know the... It's not a HIPAA violation by your employer. I'll let you finish, but because they're not because they're not a health care facility. But go ahead. Okay, okay. Well, I guess what I'm saying is like, oh, this information is supposedly acceptable because of the OSHA mandate.

But we don't know the exact standing of is that lawful because under any other circumstance, you know, if they couldn't ask a woman when menopause was, or you know, those types of things. Okay, so Tim, here, I don't think, I think what you're actually saying, too, is confusing or confuse people. Nothing that I've seen says it's a declaration.

No. You've got to show your card. Now, whether or not you have to show it digitally or in person, you know, legal, HR departments are handling that. But it's not like a declaration.

I've not seen that. Now, again, there's a 400-page requirement that has been in legal flux since the beginning. It was stated until a couple of weeks ago.

The stay got lifted, but the Supreme Court then has this emergency session on the issue of whether or not there should be a stay re-imposed this Friday. But there is not between now and the Supreme Court decision. You technically have to start complying with this tomorrow. If you're a business owner with 100 employees, you have to start complying with this tomorrow.

You're not going to get fined on the vaccine side of this until February 9th. So you will know from the Supreme Court. That doesn't mean you can't make, you have to make a good faith effort to comply now or tomorrow. I mean, we're meeting after our broadcast today with our senior staff and our lawyers and trying to figure out what the appropriate thing to do is.

Let me say this. I mean, we want to hear from you about what's happening in your place of employment or your business owner or wherever you work or whatever business you own. What are you doing if you fall within this mandate?

1-800-684-3110. We're going to give you our best information. But I think it's very clear to say, and again, if you want to talk to us, 800-684-3110, no one really knows exactly how this thing is implemented, Harry. I mean, what's your sense of good faith compliance?

Well, I really don't have a great sense. Certainly, I think employers are going to have to try to ascertain whether or not their employees by and large are vaccinated. And if not, then there is a fail-safe, which is the testing. But the testing, I think that particular component is still up in the air in part because of the absence of testing kits. But in addition to that, as I understand it, effective tomorrow, the CDC is withdrawing its support for PCR testing in 2022. So on one hand, Anthony Fauci is saying the PCR test is better than the rapid test, but then the CDC is saying we are going to withdraw emergency use authorization in the early part of 2022. So I think the court, I'm sorry, the government's confused.

Well, here's what, let me give you the statement. Okay, this is what they're saying. So they say, to provide employers with sufficient time to come into compliance, OSHA will not issue citations for non-compliance with any requirements of the ETS before January 10th. Well, that's only six days. Next week.

Yeah. And will not issue citations for non-compliance with the standards testing requirements before February 9th. So long as, and this is the catch, an employer is exercising reasonable good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance. The regulated community, by the way, is employees and employers.

It's like 75% of employers. What I don't understand there is, are we really going to take the federal government at their word when they can't barely operate? We know that there's been issues here. The IRS says they need 80,000 new employees and all this money. They can't respond in time.

And they were all having issues with COVID testing too. Does anyone have good faith that OSHA is really going to be that easy to work closely with as an employer? How long are you going to be on the phone to try and get someone at OSHA if you're an employer with 101 employees?

You're not Amazon. You're not some gigantic company where maybe it's easier for you to work with the federal government because you're a contractor with the federal government on various things. But if you don't have a direct line into OSHA now, can you imagine the whole time trying to figure out just because you're trying to make a good faith effort? It never works. These departments are not good. They're not set up to do this.

OSHA itself said they can't do it. Joe Biden, the President of the United States, play it for everybody, said they can't do it. There is no federal solution. This gets solved at a state level.

Yeah, I mean, I mean, that's the President of the United States. Yes, that's where we open up. There is no federal solution, but they're trying.

But they made a federal solution. Let's go to Rosemary in Connecticut on line five. Hey, Rosemary. Hi.

Thanks for all you do, guys. Yeah, there are two of us in our household who are being affected by the mandate. My daughter's education has been put on hold because her college will no longer take exemptions. But I work in a school as a specialist. And up until now, it's been pretty easy. We've just been going every weekend, getting our tests and giving our results to the principal. But I'm not sure what's going to happen tomorrow when we start school again, because it's like a three hour wait to get a PCR test. And they will not accept our home tests.

And since I've already had COVID recently, I'm coming up positive. So we're going to have to, I guess, have this discussion with our principal when we get back. Yeah.

So the testing situation is rather dramatic right now. I mean, Pam and I were in Atlanta, some over the holiday. And in an area we used to live on a particular street, North Stewart Hills Road, if you took a right, which we did by habit because we've been taking a right on that road for 45 years, you're talking about two hours. I mean, traffic was just stopping. Traffic was just stopped. And they said to get tested.

I wasn't trying to get tested. We should have not turned on that road. We turned around and went another way. It was a two hour wait. I mean, the lines were unreal, all off to the expressway. So I don't know how they're going to do this.

And the impact on businesses, if you're asymptomatic, are going to be dramatic. All right. We're here for another 30 minutes. We've got a lot more to talk about 1-800-684-3110. We'll take your questions. And again, a huge thank you to our friends and members at the ACLJ who came through in such a big way.

Biggest day in the ACLJ's history financially was December 31st. Thank you. Phone lines are jammed. They'll open up during the break. 1-800-684-3110.

Back with more in just a minute. For decades now, the ACLJ has been on the front lines protecting your freedoms, defending your rights in courts, in Congress and in the public arena. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org where you can learn more about our life-changing work. Become a member today.

ACLJ.org. Keeping you informed and engaged. Now more than ever, this is Sekulow. And now your host, Jordan Sekulow. Welcome back to Sekulow. We are taking your phone calls to 1-800-684-3110.

Let me just get you up to speed. So today at 9 a.m., the ACLJ filed on behalf of the Heritage Foundation, their client, in the case opposing the Biden vaccine mandate for employers with 100 or more employees. That goes into effect tomorrow, but the briefing of the Supreme Court was due today. The oral argument will be on Friday. Now that's a special session of the Supreme Court. They're not actually back technically until next Monday, but they are going to hear this case. Now the case is on whether or not there should be a stay, whether or not this should be prevented from going into effect.

Does OSHA really have the authority to do this? They've said initially they did not. We also have President Biden who said the federal government cannot provide the solution, it has to be the states.

And yet this takes all the power away from states and localities because it says this is what you must do, this is how you have to do it, except for the testing requirements to actually meet those requirements right now. Nearly impossible because the tests are just not available. So you've got a host of problems here. First, you don't have adequate testing.

So there's not the ability for the employee to get tested in a way that would make sense other than maybe missing an entire workday, which then impacts the employer. And you're already having trouble getting employees. So that's number one. Number two, as the employer in our situation, I don't exactly know what we're supposed to do. I mean, we're going to make a good faith attempt. So we're going to figure that out this afternoon. But this is the problem. And then three, the Supreme Court may give a decision right away.

They may not give a decision right away. So what you need is, you know what you need from OSHA to do? Like they do on so many other workplace safety measures, Harry, they have those little posters. We have them in our employment, our common areas, our break rooms that says here, you know, safety precautions and whatnot.

You don't have that here. And I mean, for instance, unvaccinated employees have to be masked when they're in their workspace. What if they're in their private office?

I mean, all of these are real questions. I think you're right. And one of the fundamental problems with respect to the OSHA mandate is that if you look at virtually each and every previous mandate, the burden has been placed on the employer. And then the employer's obligations have indeed been specified. With respect to testing, with respect to the vaccine mandate, or the testing opt out situation, we place the burden on whom? The employees to comply. And they have to do it according to their own expense.

And so I think we are in basically uncharted territory. And I think that is because that's what the government prefers. They prefer the ambiguity as opposed to the clarity.

Why? Because I think they're trying to incentivize vaccine vaccines. And the government could take a position in favor of vaccines.

I mean, the Supreme Court has recognized that government speech can take a position on a whole host of issues, including this. I mean, I am very pro of the vaccine. I've had my shots boosted. I think it's safe. But I'm not a doctor. I'm not giving medical advice. And obviously, that's a disclaimer.

But I've been very pro vaccine. However, what I'm not pro is trying to comply with something I don't understand. Harry, you said it impacts the employee. Let me talk to you from an employer standpoint, too.

It impacts the employer, too. We have to create a database, okay? Somebody has to run that database in addition to the job they're already doing. And this is an office. We've got offices all over.

So who's going to put this data in central situation? It's all very, very complicated. Yeah, it's just complicated for your HR department. Then the testing requirements for the employees that are not vaccinated. So the weekly testing, there's questions about, okay, so if you do like the drive-through testing or test with a doctor, that's one thing. But what about the at-home test? Does that have to be done in person, you know, every Monday at your office? I mean, so the time, the burden on the employee, because they've got to go get the test. And then on the employer, because they've got to figure out how to monitor all of this and put it together. So there's a double burden here. And again, I think, who wants the federal government trying to run this?

We'll be right back. The challenges facing Americans are substantial at a time when our values, our freedoms, our constitutional rights are under attack. It's more important than ever to stand with the American Center for Law and Justice. For decades now, the ACLJ has been on the front lines, protecting your freedoms, defending your rights in courts, in Congress, and in the public arena. And we have an exceptional track record of success.

But here's the bottom line. We could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms.

That remains our top priority, especially now during these challenging times. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org, where you can learn more about our life-changing work.

Become a member today. ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. We're giving the best advice we can give with a situation that is not crystal clear. Right, because OSHA, there was a stay on this from going into force, so everything they would have been doing to get ready for it to go into effect tomorrow, they stopped doing as well. They actually said that. So they're not ready to actually enforce, especially the most controversial part of this, which is the vaccine requirement and the testing requirement until February 9th. So they know that they can't, and they put out the statement, we can't wait to work for you. Like I said, if you're a real small business that hits this 100 employee marker, you know, 150, 200 employees, you don't have a direct line to OSHA. You're going to be on hold, just like everybody else who's on hold with every other federal agency for hours, just trying to figure out how do I not get fined out of business? Because I got one angry employee who will say, I'm not doing the right thing. And even though I'm trying to do the right thing, and then you can come in and find me thousands and thousands of dollars a day.

But I want to go to the phones, take people's calls and questions. Kelly calling from Maine on Line 6. Hey Kelly, welcome to Secular.

Hey, thank you very much. Um, my question is, um, my wife work just gave her an email saying they're going to give out retention bonuses, um, to keep employees, but they're separating it out to the vaccinated and unvaccinated where the vaccinated are the only ones getting the bonuses. It doesn't seem right or fair, and it seems almost like coercion um, or leveraging, um, to try to get people to take the vaccination. Kelly, is this a private employer? Yes, but they do get grant money from the state. Okay. But it's a private company. Yeah.

Yeah. Well they can do that. I mean, a private company could say, we're going to give an incentive for, um, the employees that are vaccinated. Look, insurance companies, if you're a smoker, they charge more. So I, I expect the insurance companies are going to get into this if this continues to where they're going to be putting it. There's already, I think at Kroger, um, or one of the other, I think it was Kroger, but maybe one of the other, can we check that out please? Uh, I think it was Kroger has had a certain insurance on employee surcharge for their employees that are not vaccinated. That's going to start happening.

I mean, so that's, that's allowed. Uh, and we think that's actually, you know, how you should, this should all be dealt with is that private employers decide you get to decide that if you like to be continued to work for an employer like that or not, uh, or if you want to seek employment elsewhere, there's a, there's a lot of employment options available to people right now. Employers are having a tough time keeping staff. So if you say, Hey, I don't like this, you know, you look elsewhere when the federal government comes into mandate it, uh, you don't have any options and questions. And you know, once they get into this business, they won't get out of it.

Cause if they know they can do this, it's an endless amount of things. You could say, you could see them saying, you know what, don't imply, don't, don't give pizza to your employees. Cause pizza is not good for you. And pizza, uh, you know, if you eat too much pizza, that's not good for your health. So no longer can you provide this kind of food to your employees, uh, even if you want to provide it because that's not good.

Employment place employment to say it was Kroger, by the way, they can decide to only provide healthy food. So that's where this has gotten backwards. I mean, for instance, at our facilities, we put in an elaborate filtering system. We have encouraged, still encourage social distancing. Um, there've been times when we've gone to a mass requirement during peaks of this where the government didn't have to mandate it. We just didn't know what the government didn't say. We got to put in this filtration system. We did it, but every employment situation is different, but that's why the federal government that's where Biden was right.

It's not a federal solution. Yeah. Let's go to Michael in New Jersey on line three. Hey Michael, welcome to secular. You're on the air. Good morning.

How are you? God bless you. And thank you guys for all that you do.

Uh, just a, just a quick comment. Um, I understand the mandate of a hundred plus employees, but I own a small business and I pastor a church in New Jersey. And so being in control of the decision of controlling the people that come in and out of those two facilities, I think it's what's going to really help us in this time is that the employers, uh, take the accountability and the responsibility of doing the best we can to slow the spread of this disease. Because, um, in my business, uh, you have to have a mask. You have to be sanitized with hand sanitizer. We have to take your temperature at my church. You have to be double vaccinated to come in.

You have to show your back card. So as controllers of the flow of traffic that comes in and out of our facilities, we have to be contributors as far as participating from a humanistic standpoint and slowing this thing and not just worrying about keeping our doors open and keep business in operation because of the bottom line. I have to provide a safe environment for my employees first before my customers. Yeah. Here's the thing. Well, I think that's right. And yeah, I mean, I think you actually got to apply it.

You got to try to create a safe environment for both. So I use us as an example. We put in a filtration system. There's no government mandate to do it. It was expensive. We did it in all of our offices and it was to stop the spread. And that was one thing we did. We put in a mass requirements, uh, when we thought it was appropriate to do.

So even sometimes when the CD says said you didn't have to, we did. I mean, so we took affirmative steps because you want to protect your employees. And if you've got customers, you want to protect your and cost your customers. The problem here is we are trying to figure out, and this is the, this is really the challenge. We're trying to figure out tomorrow how to comply with this. And we're lawyers.

And honestly, we can't figure it out. I think in Michael's situation, you know, the, how the church wants to handle things, how the business was to have, he's already doing it. You're already doing what you need to be doing, Michael, to, to, for your community and for your employees and for your employers. And I think that's true for most employers and most employees, they don't need the federal government mandating this. You don't need people reporting you to OSHA.

I don't know if you have that, that many employees, your church might, uh, but, but the second part of this is the hypocrisy we've all seen. So in New Jersey, for instance, you're coming from a very blue state. Your governor was out in Costa Rica while this was raging with no mask on.

And we, we constantly see that with AOC in Miami and Miami with no mask on. And her response is, Oh, just because people want to date me. I mean, she had no response because people in her state can't go out and have, have a drink and have a dinner outside without mask and without showing vaccines.

She's going to the States. They mock like Florida and DeSantis who they mock. And they're, they're, they're, they're taking the advantage of the fact that those are what they call free States now. Because this is the, this is the difference in all of this. When you have a situation where the employer is trying their best to comply, which I think most employers are, because what we don't want is a bunch of sick employees so that we can then not function as a business. And I think the problem here is when you don't function as a business, Harry, or when you don't take the appropriate steps, what you end up with is a mess because it hurts your employees. It hurts your company. And then you will have less employees and that's not better.

I think that is correct. Um, but I also would add that the problem with the mandate is embedded in the following statement. Some employers will do a better job than others. Some employers will actually do the wrong thing and may exacerbate, but let's presume for instance, just for sake of argument, um, that the OSHA approach is wrong.

It could then do what? Backfire. And I think that's part of the, the problem that we're dealing with here is we don't want to take away employer freedom to, uh, offer their best advice to employees to take precautions, et cetera, et cetera. But what we are saying is that Joe Biden and his OSHA staff don't know best for all of us.

And so I agree with what Joe Biden says, there is no federal solution. Let's go back to the phones. Uh, Eileen in New Jersey online too. Hey Eileen.

Hi, how are you? Yes. Good. Uh, happy new year. Uh, yeah, I, my question has been for, uh, the whole course of this pandemic.

Why would any, uh, business, any employer, state government, any entity be able to mandate a medical procedure or treatment for anyone under any circumstance? Okay. Well, let me try to help you on that. So do you have children or did you have children that were school aged? No, my children are grand.

Okay. But when they went to school, they had to have vaccines in order to go to school. You remember they all did, especially everywhere, everywhere. It was state enforced, generally not federally mandated, but to go to, to go to school, you had to have a vaccine. So multiple vaccines, but that's done at the state level, state level. And that's what the point we're making here is not that they, that vaccines couldn't be mandated, for instance, state could mandate them subjects to some exemptions, but the federal government doesn't have that authority. So why are employees or any aim able to enforce this? Well, an employer can treat, create a safe work environment.

For instance, it's a much different case. If a hospital were to say, we want all of our employees vaccinated, which they are saying, they're not mandated to sell. There is a mandate now, but a lot of them were doing that before because they're concerned on patient care and other, uh, medical personnel. That's why we have a shortage right now. This is serious.

Yeah, no, it is serious. We're going to take more of your questions. A lot of calls and questions about this coming in. So we get to as many as possible. We come back from this next break.

We've got one line open. So if you want to get that line 1-800-684-3110 our reply brief, that will be available for you. I know we're working on a blog as we speak right now, the team, we filed it this morning at the U S Supreme court that walks through all these arguments will be available for you. It's about 11, 12 pages. It's something you can read and understand that you don't have to be, I've gone to law school to understand the arguments.

I think you will see the layers there. That'll be available at ACLJ.org. We'll get that on our social media after the show today. Again, if you've got calls and questions, 1-800-684-3110.

That's 1-800-684-3110. And if you just joined us a huge, thank you to our ACLJ financial supporters. You made 2021 the biggest year in our history and on new year's Eve, the biggest day in our history financially, we appreciate you so much. Thank you. We'll be right back. Only when a society can agree that the most vulnerable and voiceless deserve to be protected.

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All right, welcome back to secular. We are taking a lot of phone calls and a lot of questions about this because while the Supreme court is going to determine whether or not this mandate goes into effect after oral arguments on Friday, they did not stop it from going to effect tomorrow. If the stay was there by the courts and by the fifth circuit, sixth circuit overturned the stay, Supreme court did not re-institute the stay, even though they are having this basically emergency oral argument on Friday before they're even back, which is technically on Monday. Our briefing, we represent the heritage foundation at the ACLJ. Our briefing was due at 9 AM this morning. It's filed. That'll be available for you to see at ACLJ.org.

If it's not already there, it'll be there right after the broadcast. But people got questions because this goes into effect, but then the penalty provision of the vaccine requirements and the testing requirements doesn't actually go into effect till February 9th, but you do have to start good faith compliance. And there's other, I mean, it's 400 pages of compliance.

So your HR departments have been busy if you work for an employer with 100 or more employees. So this is interesting questions out of Texas and Nancy online for hey, Nancy, welcome to secular. You're on the air. Thank you. Um, thank you for taking my call.

Thanks for being with us. The question I have is, um, I work for a major telecommunications company in the Dallas Fort worth area, and they are considered a federal contractor. So they have been complying by mandating that employees get vaccinated, even those who work virtually and maybe only need to go into the office one day a month, um, which is my case. Um, my confusion is that governor Abbott had signed an executive order, uh, a while back, few months ago stating, I guess I thought it was the companies with a hundred or more employees could not, um, mandate the vaccine, but, um, but I guess because we're a federal contractor, we're complying, but now President Biden is saying that we, you know, it should be at the state level.

So my question is, I mean, does my company really have the authority to do this? If governor Abbott's already signed an executive order, the state law, if the Supreme court upholds this, it doesn't permit a stay. The federal law trumps the state always. So that means that as an employer, there's no way you're going to rely on an executive order from Abbott when the fines start at $13,000 for each individual violation up to $136,000.

And if they pass bill back better, which we're going to get to tomorrow on the air, it can be up to $700,000 per violation. Right. Harry, important though, to distinguish between the OSHA mandate and the federal contractor mandate. And I believe the caller was suggesting that, uh, she was working for a federal contractor. And so that may be, uh, may mean that her employer is subject to different rules and regulations. And I believe a couple of courts, not the Supreme court, uh, have intervened with respect to the federal contractor month.

Yeah. So, I mean, it's all going to come down to the Supreme court is going to come down because if they can do it, if they have more than a hundred employees, they would still be for the company. They would still be an ocean, even if they're a federal, even if they're a federal contractor. I mean, the problem with all, you know what the problem with this is we could spend four hours a day figuring out every hypothetical and maybe we're right.

Maybe we're not. I, so what we're trying to do is we're trying to determine what constitutes good faith compliance. That's all I think you could do in a situation like this. Yeah. Except for good faith compliance. They want to find you $700,000 a time. You don't comply exactly right.

Yeah. Well, that's why the Supreme court should have granted a stay pending the disposition of the petition for certiorari or the application for a stay. They should have issued an administrative stay.

They did not. Let's go to Arthur in Ohio on line three. Hey Arthur, welcome to Sekulow. You're on the air.

Hi, Mr. Sekulow. And the question is the OSHA fine. If one is not in good faith compliance, what is the basis in law? What is the basis in regulation for that ability to fine an employer? Is there just a big zero there right now?

No. So under there, under the current OSHA standard, the violation like we walked through is $13,653 during the emergency to this, this time period. So the ETS, so it's six months. Now that's each violation. If you willfully violate, it's 136.

So if you said, I'm not going to comply with this and build back better, Congress actually wants to increase it to $700,000 maximum fine per violation. Now, what OSHA is pointing to is they have abilities to do this in other areas. I mean, everybody, you can go to your, usually your common areas, uh, kitchens at your workplace or wherever people gather to eat lunch. And you'll see those OSHA posters of all the different things. You could call into OSHA and OSHA can find your employer.

Yes. So that that's their basis. The thing is they've never done this on something that is a outside the workplace issue as well. So you have things like asbestos where, because you were going into a workplace that had it or other chemicals that you might be exposed to. If you work in a factory that you're not being exposed to in life, in life, but for your employer. And so what's here is, is bizarre is you have OSHA and employees trying to regulate something that's just as you could be as exposed to just as much outside the workplace as inside.

Yeah. I mean, because the OSHA cannot regulate private conduct at home, right? Since that's what they're doing.

Well, they're well, not if you're not vaccinated, I guess you have to get the test. But so the problem with this is the, I'm not sure there's any federal agency that could actually do this. In other words, is there a federal agency that could say, yeah, you've got to do this, but OSHA certainly can't. And OSHA kind of said they can't. And then Joe Biden kind of said they can't either when he made his statement that this is no federal solution.

And what this has done is create intense confusion. Let's try to get Mary's call and then we'll take, and the last thing we'll try to get to some other calls as well at 864. This is the last thing, but we've got two minutes left for Mary, probably the final call of the day in Florida on live five.

She would have gone on for another hour. Hey Mary, welcome to Secular, you're on the air. Hi, I'm located in one of those free states, Florida. But I have a question because one of it was similar to what that other person was asking. My son works for a fitness company that's very large out of California, but we live here. And they are mandating the vaccine, or you can get testing. But right now the way it is, there's no way to get testing anywhere.

In fact, he's got COVID right now because there's no test. Yeah, I mean, this is the issue and I think it should be brought up this way. Now, there's not enough data yet.

We know that there's all the news stories, but there hasn't been a long enough period of time where we could have data. But certainly in an oral argument, you can say, listen to any justice question, you can't get these tests. So you're putting a mandate on people that they literally cannot comply with in many states and jurisdictions across the country with any good faith effort they want. Because the burden here, how OSHA set this up, is the unvaccinated employee has to get that test. Now, if those tests were widely and easily available, you couldn't make that argument. You can make other arguments against it.

You couldn't make that one. But they're not. And so they're talking about ordering millions. But if you're requiring weekly testing, that's not going to meet this test. Or you're going to make people wait eight hours. What day of the week do they have to do that? Is that Sunday if you get a test, a drive-through test?

But you don't get those back for sometimes more than 24 hours. So I mean, it's a mess. And any time the federal government steps in this, by the way, they're never going to give up this power. It's like any other time, it's a new kind of power grab. They're testing the limits. If they can do this- This will be the limit test. Because the Supreme Court, I think at the end of the day, when they make the decision, they will be deciding whether the federal government has this kind of authority or not.

It's another unlimited area where they can start regulating businesses and private conduct and issues like that. So again, we're on this. The reply brief is filed to the U.S. Supreme Court on behalf of the ACLJ, representing the Heritage Foundation. That's going to be available for you this afternoon at ACLJ.org. And a huge thank you to all of our financial supporters. They make 2021 the biggest year in our history and the New Year's Eve, the biggest day in our history financially at the ACLJ. So from all of us, a huge thank you. We will talk to you tomorrow. ACLJ.org, where you can learn more about our life changing work. Become a member today. ACLJ.org.