DeSantis’ bid in special session for OSHA alternative might not work in practice

But Biden’s vaccine mandates for employers faces political, legal tests

By: - November 2, 2021 7:00 am

Florida’s Capitol, Jan. 6, 2021. Credit: Michael Moline/Florida Phoenix

Gov. Ron DeSantis’ record in office indicates he will pretty much get anything he wants from the Legislature during the impending special session on COVID-19 policy. The fellow Republicans who run the House and Senate have rarely told the governor “No.”

That means DeSantis can look forward to signing into law measures clamping down on local school boards trying to assert their own authority over whether kids need to wear masks; shoring up Florida’s new Parents’ Bill of Rights law to that same effect; and protecting workers against what he is calling “unfair discrimination on the basis of COVID-19 vaccination status.”

Gov. Ron DeSantis speaks during a news conference in Lakeland on Oct. 28, 2021, as Attorney General Ashley Moody looks on. Source: Screenshot/DeSantis Facebook page

Although the governor has railed against the chance that workers, especially in public safety, might be fired for refusing vaccines, his formal call for the special session is more specific about the rights of those who do lose jobs, directing the Legislature to ensure that they will be “eligible for reemployment benefits and, if needed, ensure that employees injured by a COVID-19 vaccination taken pursuant to a company policy are covered by workers’ compensation.”

Less clear is whether the Legislature will set up a state-run agency to supersede the U.S. Occupational Safety and Health Administration (OSHA), an agency within the U.S. Department of Labor that sets standard for safe and healthful workplaces, or what a state version would do exactly and how.

What top Republicans do say is that the idea is to free employers of an impending Biden administration order that companies with more than 100 employees much ensure they are vaccinated or, as an alternative, submit to weekly coronavirus testing.

Timothy Loftus, of the Center for Ethics and Public Service at the University of Miami School of Law, dismissed the OSHA alternative idea, which originated with House Speaker Chris Sprowls and Senate President Wilton Simpson, as “crazy talk” — at least regarding any hope of overruling federal regulators.

“We don’t pass federal laws and then invite people to participate,” Loftus said in a telephone interview.

Business qualms

Business organizations have been muted on the overall session agenda, including bans on vaccine mandates. In a written statement on Monday, the Florida Chamber of Commerce seemed intent on leaving as little daylight between itself and the governor as possible.

“Like Gov. DeSantis, we remain frustrated by the federal government’s decision to dictate a decision best left up to the free market. In a free market society, consumers, employees and employers are in the best position to make these choices for themselves without any government intervention,” Chamber President and CEO Mark Wilson said.

“As with any legislation, we look forward to reviewing the details with our members and ensuring any final bill helps Florida compete and aligns with our mission to continue doing what job creators do best — create jobs in Florida,” he said.

Loftus, of the U.M. law school, argued that corporations, otherwise natural DeSantis allies, welcome what the governor calls federal overreach. “It’s less people getting sick; it means they can work more fluidly and COVID becomes less of an issue,” he said.

“If you’re a CEO, you’re happy. You get what you want to run your company. You lay the blame on the Biden administration. You tell DeSantis, ‘Sorry, I’m listening to the federal government; I don’t have to listen to you, I don’t have to listen to Greg Abbott in Texas,’ and you get a pass.”

“I think it’s anti-business. I think that, should the governor’s proposals ultimately pass, it’s going to make it less safe for Floridians and could potentially contribute to another surge — which is exactly what Florida’s economy does not need,” Fentrice Driskell of Hillsborough County, policy chief for Democrats in the state House, said of the DeSantis agenda.

“It seems that this governor is so bent on fighting President Biden rather than fighting the virus,” she said.

Driskell added: “The thought of Florida leaving OSHA is preposterous, it’s ridiculous, it’s expensive, it’s going to cost millions of dollars and take years.”

The OSHA talk thus far has been too vague, the AFL-CIO’s Templin said. The governor said only that the Legislature should “evaluate whether it should assert jurisdiction over occupational safety and health issues for government and private employees.”

“Are we going to try to do this in four days? Are we going to set up an independent commission to look at this over the next many months? Are we going to have hearings with worker-safety experts, unions, corporations? Is everybody going to be invited to the table? We still just don’t know.

“That all speaks to a political gesture, as opposed to a real policy endeavor,” Templin said.

William W. Large, president, Florida Justice Reform Institute. Credit. FJRI website.

Even William Large, the conservative president of the Florida Justice Reform Institute, was skeptical.

“The proposal to withdraw from OSHA is short-sighted and will not result in immediately avoiding any OSHA-imposed vaccine mandate, as any state-led occupational health and safety plan will have to meet federal approval and it will also necessitate a substantial expansion of Florida government to handle the workplace health and safety issues currently handled by OSHA,” Large said vie email.

‘All one team’

DeSantis had been foreshadowing a special session and finally issued his call on Friday, ordering the Legislature to convene from Nov. 15 through no later than Nov. 19, when lawmakers already were set to be in Tallahassee for committee meetings in advance of the regular session, due to kick off on Jan. 11.

“Your right to earn a living should not be contingent upon COVID shots,” DeSantis said in a written statement on Friday. He and Attorney General Ashley Moody, a fellow Republican, had already filed a lawsuit challenging a Biden vax mandate for federal contractors. Another Biden rule would deny Medicaid and Medicare money for health providers who don’t require vaccines of employees.

“Of course, writing the actual legislation to protect Floridians will be up to state lawmakers,” press secretary Christina Pushaw said in a written statement on Monday.

“We are confident that House and Senate leadership share the governor’s goals for the session: protecting Floridians’ jobs and constitutional rights. We look forward to seeing the legislation they propose to achieve this shared objective, and we’re eager to work with lawmakers to ensure that ‘two weeks to slow the spread’ does not become ‘three jabs to keep your job,’” Pushaw said.

“Under the leadership of Gov. DeSantis and the Florida Legislature, Florida has been a beacon of hope, and we intend to keep it that way. We look forward to working with Gov. DeSantis and our colleagues to craft, debate, and pass thoughtful legislation that keeps Florida open for business and prioritizes people, parents and businesses over government,” Sprowls and Simpson said in a joint written statement on Friday.

“During the special session, we will do everything within our power as a state to protect Floridians from the unconstitutional, un-American, and morally reprehensible overreaches on the part of the federal government,” they said.

“We’re all one team. We show how conservative governance is done, between the speaker, the governor, and the president of the Senate,” Republican State Rep. Randy Fine, who represents part of Brevard County, said in a telephone interview.

Fine wouldn’t endorse any legislation before he reads a draft but said: “I think if the governor and the leadership agree on something it’s highly likely that the majority in both chambers will support it.”

Elsewhere, the Iowa Legislature has approved legislation to block a Biden mandate and a special session along the same lines is planned in Idaho.

Florida would be absolutely within its authority if it set up its own version of OSHA — federal law explicitly allows it, and 22 states have created such agencies, by OSHA’s own tally, covering state and local workers and in some cases private employees.

A state agency might not be free to countermand federal regulations, however. An OSHA fact sheet makes clear: “State plans are monitored by OSHA and must be at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses, and deaths.”

“You run into the ultimate issue that the federal government has the financial hammer. ‘If you’re going to pull out of OSHA or try to challenge us, then we’re going to revoke your funding for this, that, and the other thing,’” Loftus said.

Fine, the Brevard Republican, is all for a state agency.

“I think it’s a great idea. I fully support it. We should drop out of all these federal entities that have been weaponized against states. I think if we could drop out of the FBI I’d probably support that at this point,” he said.

“Anything we can do to protect Florida businesses from a tyrannical federal government, we should be doing.”

OSHA’s authority?

The basic dispute here is between the DeSantis and Biden administrations over the president’s vaccine/testing mandate for employers. Although the courts ultimately will settle that fight, it nevertheless will underlie the special session.

Loftus, for one, is less certain about Biden’s mandate, which as of Monday was still awaiting final approval. He noted that OSHA in promulgating the mandate cites its emergency authority to protect workers against any “grave danger,” according to a Bloomberg News analysis, published on Oct. 22, by James Sullivan of Cozen O’Connor’s OSHA practice.

OSHA argues COVID presents just as real a danger as, say, mishandling volatile chemicals. But it reached that conclusion only after vaccine rates declined nationally — as recently as June, the agency extended that concern only to health care workers, Sullivan wrote.

“What has changed since the pandemic emerged in the U.S. in early 2020 to conclude that now, for the first time, this new vaccination [emergency temporary standard] is necessary to protect all workers from this virus when it was not necessary three to four months ago?” Sullivan wondered.

Additionally: “Who are the millions of workers currently working for employers with less than 100 employees not also presented with this ‘grave danger’ and in need of protection?”

OSHA has defended the authority it cites now six times against federal lawsuits, Sullivan wrote. It won a single case.

DeSantis himself issued a warning to the business community during the Chamber’s annual conference last week.

“Don’t ever think that caving to the mob is going to save your bacon. That’s just going to cause them to come back more,” he said, according to a report by the Miami Herald-Tampa Bay Times capital bureau.

“You know, if you do it, you are also going to come by some people on the other side, like me, who are going to say well, wait a minute, if you’re going to criticize what we’re doing I may criticize some of the things you are doing,’’ he added.

“I may look under the hood and not like some things,’’ he warned. “I got a podium. I got cameras that will follow me around. Maybe I’ll go talk about that a little bit. And so, I think it’s something that’s very damaging.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

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