Supreme Court Will Hear Mandate Case Jan. 7th

This is Jay Sekulow. The Supreme Court will hear oral arguments January 7th on the mandate case, and briefs are due on the 3rd of January.

Keeping you informed and engaged, now more than ever, this is Sekulow. At stake are two Biden administration pandemic efforts that lower courts have at least partially blocked. One is the requirement that big employers make sure their workers are either vaccinated or regularly tested. The other requires that health care workers at facilities that get federal money are vaccinated. We want to hear from you.

Share and post your comments. Recall 1-800-684-3110. Together the two cover about 97 million Americans. They're being challenged by religious, labor, and business groups and some Republican-led states.

And now your host, Jay Sekulow. All right, we're going to try to break this down for you because, to be honest, I think anybody that's being fair about this would say this is a confusing situation. What we're talking about is the Biden administration's mandate that requires private employers that have more than 100 employees, 100 employees or more, to have in place a system where vaccinated employees would show their vaccination card. Non-vaccinated, unvaccinated employees would be required to do a weekly test. So they're not required to get a vaccine, but they have to be tested. The problem, of course, is multiple problems. One is testing right now is very difficult because of the variant that is out there has caused such serious concern that people are getting tested, which is smart.

It makes sense. Get tested if you think you might have it. The problem is now you can't get tests. This is supposed to go into effect January 4th. So I think what we need to do, Logan, is back up to what this case is about, where it started, and what the Supreme Court has done. Yeah, definitely a lot of people have lots of questions related to this, and you can give us a call, 1-800-684-3110. These calls shouldn't be on whether you're choosing to or not to get a vaccine. That's not really the question at hand. The question at hand is how does this work for an employer and how does this work for the employee in a situation that we're coming on to in, what, just under two weeks, under two weeks.

I mean, you're even less than that, 10 days or so, until this is supposed to go into effect. And really, the rules are blurry. There's not a lot of oversight here and clarity, whether that's coming from the Supreme Court and what's going to happen there, or whether that's what's coming from even just the OSHA rules.

Yeah, well, let's start with what the rule is, and then we'll get into what this means. The rule that OSHA put forward requires that employers that have more than 100 employees, that's not in one location, that's in the United States. If you have more than 100 employees, you're required as an employer to make sure your staff employees are either vaccinated, or if not vaccinated, that they will be tested once a week. And that information will be gathered and kept so that when OSHA does an audit, that's what will be reviewed. So that is what... Is that a fair way, Harry, you do employment law? I mean, law and economic... That's pretty much what the law is.

Yes. So essentially, the rules suggest that you need to impose a mandate on your employees to be vaccinated, or there's an exception allowable if they are subject to weekly testing. At their expense. At their expense, but that is also complicated by virtue of the point you raised earlier, are tests readily available at the moment, and that may not be the case. It's not the case. It's not the case for the at-home test. I think there are instances where you can go to a doctor, get that done. A lot of those still do exist.

The prices and your insurance, it becomes a whole other thing than the $30 at-home test than the $200 rapid or whatever it would be. And on top of that, Abby, we'll get into this in the back, the Supreme Court issued a series of orders, one of which requires us, by the way, to file a brief on... A reply brief on January 3rd. Yeah. So we're gonna be working right through on that. We're gonna get into what the Supreme Court mechanism is, what it's not, what it looks like based on some other cases. We'll take your calls at 1-800-684-3110, 800-684-3110. We represent the Heritage Foundation, and we're at the Supreme Court right now.

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Welcome back to secular. We are taking your calls at 1-800-684-3110 talking about the news that happened during the Christmas break. We were all on text threads because obviously the Supreme Court will be hearing the vaccine mandate cases and that's coming up and maybe you can break down a little bit more what that means for everyone who's watching. The mandate meaning the employer mandate. Yeah, so let me explain what we briefly stated what it does and what the mandate, what the order from the Occupational Safety and Health Administration said is that if you have 100 employees or more, not in one location but within your company, you either have to have all your employees vaccinated, they have to be vaccinated or in the alternative, if someone's not vaccinated they have to provide evidence of testing that they tested that week. We don't know, it's not clear whether they test on site, it's not clear how that's done but that is effectively, Andy, the law as it is right now. Effective January 4th, there's some delays in the enforcement but that is basically the law.

That is absolutely correct, Jay. That is the status of the law right now because the Sixth Circuit removed the state of the Fifth Circuit had put on the case and ruled that the vaccine mandate, if you want to call it that, the testing mandate went into effect. We sought to review in the Supreme Court through the mechanism of a stay. Justice Kavanaugh decided not to grant the stay and to refer to the whole court and there is no stay in effect, therefore that's the state of the law as of this moment.

Just what you pointed out. Yeah, so we filed along with other groups but we filed on behalf of Heritage Foundation. Our application for stay was now deferred to an oral argument that's going to take place January 7th. We have a brief that is going to be due January 3rd.

The government has until the 30th of this month and a few days to respond to our applications and all the other ones that were filed. I think there's eight or nine cases now. The only bipartisan agreement that has been put in place then is the resolution of the Senate. It doesn't carry the force of law but it was interesting that they did it. Well, it's not going to be enacted, Jay. You're right but that is about the only bipartisan thing happening in Washington, D.C. right now. The Senate voted 52 to 48 to strike down the mandate, Jay.

Joe Manchin of West Virginia, John Tester of Montana voted with the Republicans so the vote there was 52 to 48. But Jay, Speaker Pelosi has indicated she's not even going to bring it up for a vote in the House and even if a majority could force a vote, Jay, the President could veto that. So it's not going to resolve the issue. The issue is going to be resolved here through the case of the Supreme Court. All right, so Abby, let's talk about what we did here. So we represent the Heritage Foundation and we took an application for a stay and an alternative, a petition for surgery. So explain to the audience what we've asked for then we'll talk about what's actually happening. Okay, so we've asked the court first in the application for stay to go ahead and issue an emergency stay that is in line with the first action taken in this case by the Fifth Circuit which was to issue the stay which was then undone by the Sixth Circuit. And then petition for search of area would ask the court to review the merits of the case. So right now what we have though is we got this is the order that the court issued and it said that the case is the consideration of the applications for stay presented to Justice Kavanaugh and by him referred to the court is deferred pending oral arguments.

Let me stop right there. What that means that normally what you would expect it was Harry an administrative stay to be put in place. In other words a justice can say you know what while this is being litigated this law is going to affect January 4th it's going to be difficult for employees it's going to be really difficult for employers put a stay in place keep everything status quo until we're hearing this thing expeditiously.

They did not. They did not and it's very very surprising and I think it certainly throws everything up in the air because in a sense employers need to prepare for the full enforcement of this mandate as of January the 4th 2022 and then the Supreme Court will actually hear the case or at least a case surrounding the stay on the 7th. So it with no stay with with no stay in place and it's also compounded by virtue of the fact that there are an insufficient number of tests available to employees who have the burden of ensuring that they take a test if they are not vaccinated. But Logan you raised the point that you the whole at-home tests are not available in the scene and the order from OSHA doesn't separate the two but you can get tested. Yeah I mean I think a lot of the still the clinics and the different offices and walking a lot more well it's a lot more expensive in the process and sometimes it takes days and if you wanted the fast rapid one it's 120 to 250 bucks people are not going to do that every week.

So there is that I mean obviously even when the rapid test started coming to retail the ones you could do yourself they went pretty quickly you know I had a few and then they were you know gone I had kept a few we had in the house when you could get them readily now they're pretty much gone everywhere. However you're going to see more roll out and even in the Biden's proposal speech said hey we'll send one they're gonna be a website we're gonna be able to eventually just put in your address and we'll send one to your house one so who knows I mean this is a it's a complete mess. It is a complete mess and the easy answer to this Andy would have been to grant an administrative stay. Administrative stay is not a decision on the merits it just holds things in place. But I don't understand why Justice Kavanaugh didn't do that he is the circuit justice for the sixth circuit had the right to simply say and to the folks uh listening and watching I just want to say an administrative stay just simply says stop hold everything as it is the law does not go into effect the things that the fifth circuit decided in granting the stay stay in effect the overruling of that by the sixth circuit is reversed for the moment administratively until we can hear from the government December 30th until we can hear a reply from the petitioners that includes us January 3rd until we can have oral argument which is January 7th he could have said just everybody stopping your shoes stay still and let's figure this thing out before everybody's scrambling around to figure out whether they get tested how they get tested how much it's going to talk cost what this is going to be what that's going to be but he did not do that and I am still curious and don't know why Jay. And we're not going to know and here's the here's the real here's the real problem the the occupational safety and health administration OSHA we're breaking this down for you whether it employ if you're an employee or an employer call us 1-800-684-3110 800-684-3110 so OSHA said that this is what they're going to do this is when the sixth circuit uh decision came down they said that OSHA will not issue citations for non-compliance with any requirements of the ETS that's the emergency order before January 10th which is only three days after the oral argument and will not issue citations for non-compliance with the standards testing requirements before February 9th so long as an employer is exercising reasonable and good faith efforts to come into compliance with the standard so Harry if I'm the lawyer representing a company and in their HR office I'm going to say look by January 4th you need to have taken reasonably good faith efforts to come into compliance absolutely so reasonable good faith compliance whatever that means will be a function of I think existing practice and existing law and I don't know the specifics of what that really means but certainly it does mean that the employer has to begin an affirmative effort to achieve compliance in early January they have to incur the cost they also have to incur the legal cost in terms of specifying to their employees keep in mind if you have a hundred thousand employees you will have to communicate with all of them in order to avoid these penalties down the road. When I want to be clear to our audience and our supporters and and and Abby will address this we did ask for a stay we've asked for a stay we did yes so the problem here is that the stay it wasn't denied it was postponed and the law goes into effect so how do you read it the law goes into effect January 4th you're going to make a reasonable good faith effort I think the employers have to begin all of the work necessary to comply with OSHA before the Supreme Court will even hear argument in this case and then as you know then we have to wait we have to wait for a decision after Oregon three days or three weeks or three months we have no idea so and it's only a decision on the stay so then if the stay is granted it goes back to the court's logan to determine it on the merits which is the sixth circuit is already determined on the merits now maybe if the Supreme Court gives enough substance to it it won't matter but this is the difficulty and it's putting employers and employees in a tough spot and like I said I'm pro-vaccine you know that but the mandate is just not set up I think to be easily administered especially starting administered not easily I mean even being administered and in theory starting you know the first of the year I mean the fourth year first week of the year in theory sounds good well it's beginning of the year but this is when a lot of people are just now getting back into the office I mean even here today in our studio where you know probably a quarter of the people are still out on vacation or out on family trips so look some people are out because they're sick there's a lot of things happening right now in the world that is causing people to not be in the office right now and this whole change look there's that whole conversation really a minute left of even your remote employees and what that means for people who are working remotely well they don't have to be you wouldn't have to test them but they do count into your 100 and if they come in at all at any given time they're then subject to that what about guests and you're off what about you know other things that happen a lot of times people don't have immediate I mean these are look that's why we ask for a stay there's a lot of questions that there are no answers to I think that's probably we're going to answer the best we can because we got a lot of questions coming in but we're and we're going to start taking those early in the next segment folks don't forget to support the work of the american center for law and justice at aclj.org we're in a matching challenge campaign we've got a brief due in this case on january 3rd the government's brief is due on the 30th oral arguments are on the 7th the law goes into effect on the 4th is this complicated enough yes could have they made it less complicated you know i've been doing this for 40 years so i'm going to say it yeah they could have made this a lot less complicated we've been i've been doing this for four decades there's an easy way to do it they should have issued the stay 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 at the american center for law and justice we're engaged in critical issues at home and abroad whether it's defending religious freedom protecting those who are persecuted for their faith uncovering corruption in the washington bureaucracy and fighting to protect life in the courts and in congress the aclj would not be able to do any of this without your support for that we are grateful now there's an opportunity for you to help in a unique way for a limited time you can participate in the aclj's matching challenge for every dollar you donate it will be matched a ten dollar gift becomes twenty dollars a fifty dollar gift becomes 100 this is a critical time for the aclj the work we do simply would not occur without your generous support take part in our matching challenge today you can make a difference in the work we do protecting the constitutional and religious freedoms that are most important to you and your family give a gift today online at aclj.org welcome back welcome back to secular we are going to be taking some calls coming up here in this segment and in the next half hour so if you don't get us on your local station our phone banks are really full right now they will open up and will give us more time so you have a whole another half hour to get your calls or comments in as well should we go ahead and take calls let's go in the order they called okay let's go to robert maryland on line one you're on the air hey robert yeah hi uh jay and hi jordan i wanted to uh ask you uh as far as the vaccine mandates idea uh did this idea come uh from anthony fauci for uh for President of biden to try to impose it or did it come from vice President kamala harris well the the vaccine development itself started under President he's saying that the mandate let me just yeah okay the vaccine itself was developed during the trump administration under operation warp speed so that's where the vaccine developed the implementation of that vaccine for the first year not even year i guess it's been what nine ten months has been voluntary and a lot of people have been vaccinated i mean the vaccination numbers are in a lot of places are in the 60 70 percentile the mandate to come into place was the idea i don't know who was the originator of the mandate whether it was the President or anthony fauci but it came from the executive branch which is what makes this so interesting so the executive branch of excuse me the executive branch of government decided that the way to increase vaccination to curb the virus was going to be that individual private employers with more than 100 employees would have their staffs would be tested at a minimum vaccine preferred so it's really it is in a sense a vaccine mandate in that you got to be vaccinated the exception is if you're not vaccinated you have to be tested weekly now how the court's going to view all of this is the open-ended question but the employers like we're having this discussion here at the aclj i'm our client the heritage foundation is having this everybody's having this conversation and that is what does a reasonable good faith effort mean and you know to us that means i mean if you're being conservative as a lawyer it means you're putting in place the things you can put in place to get it done that's right um you have to begin preparing a policy you have to distribute that policy to employees and inform them of of what will take place beginning on january 10th yeah so i mean you know the court could have made this a lot easier andy by putting that administrative stay in place but they didn't well there's no reason in the world in my view not to have put the stay in place it would have simplified matters we would have known where we stood the law would not have taken effect until the supreme court ruled on it all it had to do is require the signature of justice kavanaugh is the circuit justice it would have just had everybody stand still until the court figured it out but for some reason i have no idea justice kavanaugh decided not to do that uh and and he didn't implement it and therefore we're in this kind of a uh who knows what situation you know what though i mean he's not obligated to issue a stay i mean i think it would have been the prudent thing to do an administrative stay here maybe there weren't five votes for it there are two cases actually the second case is a vaccine requirement for health care workers and vaccine or test mandates aimed at private businesses with so there's two cases i think it's two separate arguments i'm not it's there's it looks like there's two hours worth of arguments on the seventh but in neither case stays have been granted correct correct yeah so no stays have been granted on any of this there's no legislative moves going on right dan uh not currently jay i mean there is one active in the house of representatives as speaker pelosi would choose to call it up that's the one the senate passed 52 to 48 we don't expect her to do that jay and just to be very candid with our listeners even if the house did pass that it would go to President biden and he could veto it there's not veto proof margins in either house i will tell you this though jay one of the things i'm hearing the most from members of congress while a lot of the legal arguments are around you know the the force of law and the ability for osha to impose the mandate they're really concerned about the economic impact here jay i mean it's probably the worst time in the world to inject more uncertainty onto both employers and employees and as you said it's a murky situation so does this economy need one more uncertainty i know the elected officials are saying no yeah here's the here's the here's the thing i just cannot get my head around logan i've been doing this for 40 years i mean have you said that you know you would know better than anybody i mean it's the truth you get administrative stays like any said are not complicated you just they're hearing the argument in the case three days after it goes into effect issue an administrative stay decide the case quickly they did bush versus gordon two days and you have a decision by the 10th and then we figure it out and then give us a week to figure out how to implement it but that's not what they've done take another call all right let's go to philipa who's calling online too in california you're on the air hey phil thanks for hi thanks for taking my call um the message you've been sharing today is really great so my situation i am a health remote health care worker that works from home for the last three years all right and i've been placed on administrative leave and looking at a termination as of january the 7th is there anything that i can do with information that you shared not to be terminated and to lose well let me ask you this is your is the you're a remote health care worker so working out of the state of california because i know every state is different yeah so is the is your employer putting in place is your employer putting in place that everybody has to be vaccinated correct yeah well and they're a private employer i would it's not the state of california it's very tough no go ahead yeah is there um i think there's california legislation isn't that right um that has has actually mandated the state of california so they're they're health care workers are required in california to be vaccinated but are you an are you a nurse or are you doing giving like telemedicine no i'm a um back office worker so i work from home yeah but i think it applies to all health care workers we can't give you advice on individual states i'm just this is but it's i'm glad you called because you know what it says logan this is really confusing because there's a person that it would really not matter no it shouldn't matter at all i just got a notice from my insurance company our insurance company that they have gone to remote because of the variant okay which means things are going to take longer to process not i just got it like five minutes five seconds ago of course it's going to take longer to process so they're put the supreme court didn't issue a stay so we're having to deal with all of this now andy i mean this is what is so ridiculous about this and i've been as pro-vaccine as there is anybody in the country on this stuff me and donald trump yeah you and donald trump that's right donald trump who under warp speed invented the vaccine and who uh really gave us the opportunity to be vaccinated and to at least reduce and mitigate the the the horrors of the disease if you get it but you're right he got warp speed i would let's i'll give credit where credit's due i think it was the other yeah he didn't invent it but i know what you're saying we don't you say it's just confusing words it's just confusing and the part of the problem with taking the calls and i'm glad we're doing it logan is some of these we just don't know the answer to infer it's obviously for employers over 100 uh is the mandate yes but not in one location and no one's really unclear what that 100 means is that 100 people is that 100 if you got guests if you're a part-time employees it seems very uh vague and i think that's the problem they're concerned and there's a lot of people are gigantic there's a lot of people with a hundred ish people working for them hundreds yeah like there are that's about as confirmed as they're ordered we have about a hundred that's a big business but that's not a gigantic business that's not yeah mcdonald's employing hundreds of thousands you're talking about 100 people to do this we only got 50 seconds left but there are employers that are covered by this thing that do have a hundred yeah will just said the requirements are vague but the penalties are not yeah well that's well not only that you also have the situation where the penalties have been ramped up yes just for this particular uh issue vis-a-vis uh other issues in the workplace let me tell you what this means we're really fighting hard to get clarity and that me and we're working right through the holidays to do it we're coming to you live on the broadcast today support the work of the aclj we're in a matching challenge campaign five days left we are close to last year we're like within 100 i think a hundred thousand dollars of get pulling ahead of last year which was a big year for us so we want you to go to aclj.org any amount you donate we've got people matching it so aclj.org that's aclj.org we're here for another 30 minutes we're going to take calls we're going to answer as many questions as we can aclj don't forget to support the work of the american center for law and justice back with more in a moment at the american center for law and justice we're engaged in critical issues at home and abroad for a limited time you can participate in the aclj's matching challenge for every dollar you donate it will be matched a ten dollar gift becomes twenty dollars a fifty dollar gift becomes 100 you can make a difference in the work we do protecting the constitutional and religious freedoms that are most important to you and your family give a gift today online at aclj.org so we're live and we have to be live for a lot of reasons we want to be live to be able to talk to you about the supreme court uh work that's going on on this vaccine mandate we are filing a brief now on january 3rd i we were preparing one anyways to be quite clear we even though the order wasn't clear nothing in this case i will say has been clear we filed an application for a stay and an alternative assert petition so that the biden administration's mandate which we don't think can even be enforced because it's so difficult to understand it be put on hold until the supreme court makes a decision on the stay they granted the um agreement to hear the case january 7th the law goes into effect january 4th our last brief is due january 3rd the government's is due october uh december 30th this is not to be confused though with the state mandates which have already been decided once by the supreme court i'm gonna let abby explain that one because some states have already put in mandates and the supreme court's already issued on that right so the case currently before the supreme court that we are involved in it involves the federal mandate there are there are also several states that have decided to implement their own vaccine requirements and or mandate and thus far the supreme court has declined to entertain any applications for stay as to those states for example new york is one of those so we just wanted to clarify there is a difference between the federal and the state mandates and so far the supreme court has declined to weigh in on the state mandates yeah and there was a interesting there with the who was not part of that right justice gorsich alito and thomas dissented um in denying the emergency application for stay in the new york state mandate okay so if that's not confusing enough let's try to answer some questions because a lot of people have and we're going to try to go through these quickly so we'll keep the lines open i know this is listen we're all having to deal with this as employers employees this is complicated let's go ahead let's go to john and pennsylvania is about to hold the longest john on line six you're on the air hey john hi how you doing you guys do some good work thank you but if you're confused i know i'm confused you know i just have a statement and a question if if it's such an emergency why does it apply to people employers over 100 what do the people not matter under 100 no it's osha's general jurisdiction on matters like this apply that's a jurisdictional question of 100 employees or more that is really the way in which osha is set up to when they actually andy can regulate an environment that's right there is a prohibition against osha interfering in matters less than a certain number in terms of making determinations of the workplace situation yeah and one of the things that has been not raised yet jay is whether we even need to reach the constitutionality of the mandate and whether we simply focus on osha's rule making authority and avoid the constitutional issue altogether the court could do that yeah i mean because they didn't go through rule making which would delay the impact of imposition of the rules so here's what we do know the reason we filed what we did with the supreme court in the united states look we're glad that the supreme court's going to hear it so they could have listen the court could have simply said abby no applications for stays denied sixth circuit law in effect that's it could have been it right and that that is what they've done with the state mandate case yeah they didn't take it which left it in place which tells you what they're thinking so the fact that they've taken this i don't want to read anything into the substance of where we go but we did accomplish that i want to be clear we got a positive result in that the court agreed to hear it and our case was accepted as one of the cases that's right we do clear enough i don't know it's fine see where everything's fine we're all fine here how are you give us a call 1-800-684-3110 heading into the next segment we do have a completely full bank of calls right now we're going to try to get through as many as possible they're great calls though a lot of great people have called in with great questions usually you ask a question 12 seconds later the answer happens we move on this is if you ask a question five minutes later we can move on so we'll get to as many calls as we can we know it's a pretty intense time for a lot of people but again hey one line just opened someone hung up 1-800-684-3110 support the work of the aclj at aclj.org and again get your comments in as well we're monitoring your comments and questions online on social media on facebook and on youtube we'll be right back at the american center for law and justice we're engaged in critical issues at home and abroad whether it's defending religious freedom protecting those who are persecuted for their faith uncovering corruption in the washington bureaucracy and fighting to protect life in the courts and in congress the aclj would not be able to do any of this without your support for that we are grateful now there's an opportunity for you to help in a unique way for a limited time you can participate in the aclj's matching challenge for every dollar you donate it will be matched a ten dollar gift becomes twenty dollars a fifty dollar gift becomes one hundred this is a critical time for the aclj the work we do simply would not occur without your generous support take part in our matching challenge today you can make a difference in the work we do protecting the constitutional and religious freedoms that are most important to you and your family give a gift today online at 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 gift we're going to go to the phones uh and take your calls but i want to go to fan on this and and because i you know people are asking what can congress do what can congress do and they they passed a joint resolution uh in the senate but that's about it yeah i mean there's a mechanism they could use the congressional review act they tried to initiate it in the united states senate senator mike brawn put forward a resolution and it got bipartisan support jay which is actually you know pretty shocking in the current state of affairs it passed the senate 52 to 48 if that measure jay would pass both chambers and be signed into law by the President it would pull the regulation down but here's you know the obvious problem speaker pelosi's not going to schedule it and even if a majority of the house 218 members in this case would sign a discharge petition and force a vote and the house would pass it well President biden could veto it and we're nowhere close to a veto-proof majority in either chamber jay so you know the the short answer is there's a mechanism to do it but there's just not the votes it's going to be resolved at the supreme court yeah look like i said i mean if you're vaccinated you're it's not going to affect you uh except if it affects your employer they can't keep their business operating and then it can affect everybody the vaccinated or not so they're the impact on this could be very significant like i said i'm pro-vax but i mean trying to apply this as an employer is impossible right it really is impossible right now go ahead yeah let's go ahead let's take some more calls because a lot of people been holding for close to half an hour let's go to michael in illinois on line five michael you're on the air uh yes okay so i work for a major corporation that's out in lake forest uh we have uh locations uh we do sales and manufacturing so throughout the country i actually work in the corporate office i have not been there in the last almost two years i've been working from home uh within the last three to six months they've initiated um the corporate office has initiated you have to have a vaccine to go into the corporate office you have to there's no religious exemption there's no testing out or anything like that uh so i i cannot go into the office and um so i guess i'm just i'm just wondering if i'm just confused because i really don't need to be into the office but um uh you know they're making you this is a good question okay so look a private employer could say uh yeah you're to work here you have to be vaccinated i mean it is that simple now is there a religious exemption i mean i think those are tough cases really tough cases whatever that means uh but a private employer certainly could say that's going to be the requirement of the workplace i mean we put in a filtration system in in our offices we didn't have to nobody mandated us to do those better for our employees if we did it we had a mask requirement for a period of time uh because we had people we were concerned about that were compromised and our governor and state said we should do it yeah so try to comply as much yeah but a private employer has a lot more i mean that's i can answer that one quickly yeah the private can decide what they want to do so that is what that is uh so let's move on you want to take some more calls yes okay uh david who's calling similar call in california on line four line four you're on the air yes thank you for taking my call uh you touched on some of these but i just wanted to maybe you have additional information but number one does osha have the constitutional authority to enforce the mandate number two by revealing one's vaccine status does it violate the hippo laws and uh also uh if you work from home does the mandate apply to those who yes let's start with a lot of people are asking that question i think that's even what the last caller was asking about which is if they're working for home but they work for a major corporation are they still required to report in their testing well that employer had a little bit of a dick that the previous caller said if he were to go into the office he would have to be vaccinated they didn't say he was going to lose his job uh if he was working from home testing yeah well here's the thing this is a three-part question here so does it violate hippo that raises an interesting issue hippo only applies to health care institutions and your employer is not a health care institution having said that it puts the employer in a very awkward as an employer very awkward position to start creating these kind of records but it probably doesn't violate hip does osha have the authority to enforce the mandate i think they picked the wrong agency i mean i didn't go through rule making that's my view but i'll abby and harry what do you think well and i think one of the points that we raised in our brief submitted before the sixth circuit is you have several agencies that are vested with authority relating to vaccine rollouts and that would be um the fda hhs hhs and so clearly what happened here is the administration determined that they did not have the authority for a vaccine mandate through any of these other agencies and their best shot was osha which is it's it's probably their best shot i still think it's a very weak argument but it wasn't so weak that the sixth circuit didn't didn't agree but it's it's look that whether osha has the authority is really going to be the fundamental question and whether it was structurally statutorily and constitutionally set up that way that's what's going to be decided harry i think that's correct and i so i think most people who look at this particular issue if you look at the vaccine mandate if you look at the uh testing issue i think most people will agree that the focal point of osha's quote-unquote mandate whatever it is uh is it is not focused on illnesses that are generated by going to work in other words you could contract coded you you go into a store you talk for 15 minutes with person x or person y and so i think that begs the question as to why osha did not go through regular rule making so that they could deal with some of the issues i think many of the callers are raising valid concerns that are not answered by reviewing all 450 pages of the emergency temporary standard yeah but i think they'll come out with a one-page list of what you're getting cannot do i think that's going to happen well hopefully uh with this administration who knows let's go to kathy in florida online too kathy you're on the air hi thank you for taking my call i'm a i'm a teacher at a private school in miami florida and um back in alaska in early september we got a letter saying that we they we strongly and strongly would emphasize um we recommend vaccination if not you're required to do a testing once a week and get the results in by wednesday which are done with no problem the problem i have now is that with the new variant yeah i can't get yeah i can't get i can't get even close to a testing center i mean we're talking hours and hours of waiting there's nothing in the drug yeah absolutely i think that's going to be one of the big concerns because like when my cousin she works at one of these testing facilities has for you know urgent care work i was texting with her yesterday they saw nearly 200 people within the first you know few hours of them being open not for a full shift you know so 200 people at about 10 to 15 minutes a person to get a test done what do you think about once they get the result it's only about two minutes to swab and get out of there but you're talking about there's just not enough time on the books to get the amount of people that need to get tested done at some of these facilities and i think that's going to become the big problem and when they came up with this idea and this concept that is when no one was getting testing where they were destroying tests literally where they were shutting down the testing facilities and the vine administration had the opportunity to order what was it in october harry it was october and they rejected a plan then in place to make tests widely available contrary to the experience of many european countries and so then they imposed this mandate they should have made sure testing was available widely before imposing the mandate but see the problem with all this is and if you look at it administratively this is what i don't get you they put this in place you can't employers are trying employers are trying to figure out what we do here employees are trying to figure out what they do and meanwhile you've got some industries where this is a real problem a serious problem it is a serious because employee shortages will be real it will be very real especially if they're not there and and on this thing that logan was adverting to with respect to testing i live as you know in atlanta and i outside where i live the there is a testing facility to the right of us and the cars are backed up all the way along north side parkway onto the ramp of interstate i-75 a major artery onto interstate i-75 trying to get tested when there is an impossibility of performance do those people have to get are they going to be penalized are they going to have fines imposed against them because they tried and couldn't get uh tested i don't i hope not the law says impossibility of performance should not result in negative consequences to the person we talked about that before the problem with that is and abby was right is you got to hire a lawyer and a law firm to represent the represents the employees and that could get very expensive very quick well and that's the complication here and has been all along is this mandate is not really to to curb behavior by the employer it is to curb the employee's behavior and so there's a disconnect if you're an employer and you're being told by your employees that there is nowhere to get a test as an employer under under the osha regulation under the ets you're simply required to keep your employee from returning to work until they're tested um however except you got to pay for that yeah employees not productive if they have to be in an office or a factory or wherever it might be to work precisely you can't do that's not so simple precisely and so it does create disruption which is one of the things that osha claims to be attempting to regulate here or prevent we're heading to the last minute of this segment next segment we're taking as many calls as we can but also to go through this real quickly maybe we can in this last minute what is the actual timeline so people understand january 4th january 6th they're hearing a lot of january 4th is when the law goes into effect employers have a have to have a good faith uh attempt at with exercising reasonable good faith efforts to come into compliance the law goes into effect january 4th the argument to the supreme court is january 7th no stays in place so that law goes into effect the fines are not levied until february so you should have a decision decision should come fairly quickly it should in theory in theory because it's an emergency yeah but and they've expedited review but you know i think you know it's putting employers and employees in a very very disorderly dysfunctional situation that's being kind well i'll try to make it clear for you i don't know if it helped but we'll do our best uh aclj.org support the work we got one more segment coming up on secular we'll be right back 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 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 gift at the american center for law and justice we're engaged in critical issues at home and abroad whether it's defending religious freedom protecting those who are persecuted for their faith i'm covering corruption in the washington bureaucracy and fighting to protect life in the courts and in congress the aclj would not be able to do any of this without your support for that we are grateful now there's an opportunity for you to help in a unique way for a limited time you can participate in the aclj's matching challenge for every dollar you donate it will be matched a ten dollar gift becomes twenty dollars a fifty dollar gift becomes 100 this is a critical time for the aclj the work we do simply would not occur without your generous support take part in our matching challenge today you can make a difference in the work we do protecting the constitutional and religious freedoms that are most important to you and your family give a gift today online at aclj.org all right welcome back to secular we're going to go straight to the cost we have so many coming in let's go to chris in nevada on line one chris you're on the air hi does the normally a stays granted if there's a likelihood of success on the merits and if the supreme court didn't grant a stay isn't that an indication where they're leaning and then for harry is it constitutional for the sixth circuit to override the fifth circuit thank you well the sixth i mean i'll answer this this the stay question so an administrative stay is not a decision on the merit so for order's sake and and and andy quickly here for order's sake they didn't have to admit there will be a decision on the stay that's what the supreme court's going to decide but an administrative stay is not a judicial determination a justice could do that on their own that's right it does not mean that it is an indication of how the justice or the court is leaning on the merits it's simply a standstill order that's it and then the question harry on the sixth circuit the under the consolidation rule that's what the circuit that was randomly picked absolutely so the sixth circuit decision was indeed constitutional yes um and basically it's a lottery in terms of of which jurisdiction gets the case and it turns out it was the sixth circuit which then overruled the fifth circuit and that decision was constitutional but we think it was fundamentally wrong yeah in other words they had the authority to do it it just we think they got the wrong answer all right let's keep going let's go to laura in kentucky on line six you're on the air laura welcome hi laura hi um my comment is about the nurse that called in that she worked for a company um and they did the mandates i also am a nurse that works for a major insurance company and i've been working from home for eight years however on our whole department they made it mandated that we had to get it so some quick some um were fired but my point about this is both of those that got fired and or quick or no they can't get unemployment because they it specifically said you didn't do what your employer told you because you didn't get the shot that's yeah yeah but it's a private employer you know look we got to defend private employers decisions too they have the right to do that and a private employer can say we're going to have a vaccine mandate and you and a private employer can do it now there may be grounds for a religious exemption i think those are very tough cases honestly but a private employer can do it i mean and the states can do it as well and the supreme court let in place a case coming out of the states and they did not intervene and that decision said that the state mandates could were held constitutional so this these these are not folks these are not easy questions and if you're looking at your you know if this is the hill you want to stand on understand it could end up impacting the other employers you're trying to get jobs with we say you're being exactly the same boat this is not easy all right let's keep going let's go moving on about if you want to call in we still about six minutes we may be able to get to you 1-800-684-3110 no guarantees let's go to roberta in colorado on line three you're on the air hi i'll keep it short and i'll keep it fast i understand that congress is not under the mandate i understand that the post office employees are not under the mandate yet truckers who are alone in the vehicle are under the mandate can you explain that okay so than congress and the post office well this is a private employer's mandate for employees of more than 100 people that would not apply to individual congressional offices there's not a vaccine requirement inside those offices so i think the double standard is a relevant one to ask about i'm not sure on the post office jay i'm not sure on that one gave an exemption to the post office because of the impact it would have on postal service delivery of the mail and the union and for their businesses disruption that's a problem but for everyone else's you know it doesn't matter that's basically what they're saying it's ridiculous all right take another call uh james in new york line five james you're up can the families sue uh the government if their loved one dies from the mandated vaccine i i mean i i'm not a plaintiff's lawyer so i don't know but i you could have the let me tell you what here's another one what if you get a false negative on on the uh the person's positive on their testing and it came out negative and then they end up suing the employer who's saying hey you made me get this test it came out negative now all these other people are exposed yes this is a plaintiff's lawyer's dream okay because it's confusing confusion is great for plaintiff's lawyers james more question we're going to break it down a little bit more it was more if someone can't get it because look there are people in our offices that cannot receive the vaccine who have real medical medical issues they can't get it so what happens in that situation do they lose their job but the thing is no because at this point they just get tested they just get tested right so this is not a in that sense it's not a vaccine man and that's where the court can get interesting yeah because it isn't all right we're gonna get another call and i think we may even get another few more let's see susan who's calling california you're up hi um i am outraged we have i'm an i'm a nurse and i also run a health care facility where all of our patients pediatric and adults is this are you getting feedback you're fine go ahead um where um pediatric patients and adults um are on life support the family members cannot come in and visit because our state has mandated that everyone has to have a pcr test to come in within 72 hours so they can't see their family members on christmas new year's through the holidays or at all and these are children on life support our state is there's no testing it's two miles long if there is testing available and now they're saying that they're going to change it so that the family members can use the rapid test which is notoriously unreliable and so they're spreading covet everywhere they're they are the the people in power are so incompetent in my state it is well california's you got you got a mess in california but let me let me say something here though okay because this is what if i had a loved one okay i'm just going to be really honest with people if i had a loved one that was in in pediatric uh intensive care and i could only see them if i get the shot and i'm the parent i get the shot i don't think that's what they're saying okay she's saying that everyone has to get tested which is what a lot of the california rules are right now because of the omicron issues so that the the big that's they're trying to avoid the big question is going to be are tests available can you actually get them when she says they're two miles long that is not a lie you're talking about hours and hours of weights a month ago it was hours private employer but private doctors can give you a test immediately most of them they have your actual your primary care doctor correct so if i was the the parent of that person i would do that there's let's be practical on this and not make that you were trying to explain to you something that's very difficult to explain is the question and we'll hopefully get some clarity i hope from the supreme court sometime in january after this law is already in place but i think you got to use some common sense here too all right well i don't know if we're going to another car is this one coming up no all right well i think that's probably going to do it again we'll do more this week i mean we're going to try to answer for people we understand it's very complicated we're trying to break it down as simple as you can as we get more information we're going to get it well hopefully we will and we're still in the last few days of the year it's obviously a very important time to support the work of the aclj at aclj.org and if you do it right now in all the receipts you'll see there is a code to watch our brand new 10 part over four hour series on the last few months and really the last 20 years of the war on terror and afghanistan called revenge of the taliban we did with some of the top names in the in government top names you're probably here as Presidential candidates coming up in the next few times of really great people and a really interesting deep dive that we did and it's available right now and the only way to get it right now is to donate to the aclj in the month of december and you'll get a code so right now that's just a really great uh logan and the team did a really great there's a great series we encourage you to do it also let me say this our team literally worked through the holidays we are working through the holidays because we got new years coming up but two days later we've got to file a brief at the supreme court of the united states on this mandate issue your support for the aclj makes that possible as logan said we're in a matching challenge campaign we're in the last five days we are 100 000 i think i'm almost right to the dollar uh behind where we were last year last year was an exceptionally great month if we can do if we can beat that that would be unbelievable and incredible and we would appreciate it if you haven't donated yet go to aclj.org and remember whatever you donates match aclj.org that's aclj.org we're going to stay on this issue for you because obviously it's a lot of questions you 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