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About The Bulletin. (Bend, OR) 1963-current | View Entire Issue (Sept. 21, 2021)
A8 The BulleTin • Tuesday, sepTemBer 21, 2021 EDITORIALS & OPINIONS AN INDEPENDENT NEWSPAPER Heidi Wright Gerry O’Brien Richard Coe Publisher Editor Editorial Page Editor Let the equity map help guide decisions for future planning of Bend transportation W here is the best place to spend transportation dollars in Bend? You could pick based on safety, congestion, supporting more alter- native transportation, such as biking, walking and transit or some mix of all of them. Or what about based on equity? Equity has many meanings and lev- els. But the city of Bend has an equity mapping tool that overlays census data. There are tabs for looking at residents with disabilities, minority residents, limited English proficiency, residents living below the poverty line and seniors. It’s much easier if you look at the maps of the city yourself. They are available here: tinyurl.com/Bende- quitymap. You can click on the tabs and it will color in the maps. The results aren’t too much of a surprise. Awbrey Butte doesn’t light up no matter what category you look at. Most of the concentrations are on Bend’s east side, particularly centered near Third Street. The area along SE 15th Street also shows up, depending on the category. This mapping data is based on census data. It’s limited by how good that data is. And it changes as peo- ple move in and out. But it’s one of the best tools we have of suggesting where people live that may be strug- gling more than in other areas. How do we use this data? The city, which has the link we mentioned earlier, set it up so you can click on projects from the GO transportation bond and see how they fall in the highlighted areas. The Bend Park & Recreation District has talked about using the equity tool. This week, the Bend Metropolitan Planning Organization, a regional group that makes decisions about transportation, will be looking at it. When federal money is involved there must be a commitment to nondiscrimination. The city’s equity mapping data should act as a moral beacon. With- out it, the light is off. What the settlements mean for Deschutes County Sheriff’s Office A jury in federal court found a few weeks ago in favor of for- mer Deschutes County Sher- iff’s Office deputy Eric Kozowski. He was awarded $1 million. Sheriff Shane Nelson was also ordered to personally pay Kozowski $10,000. Then more recently the sheriff’s office and the county announced a settlement with former deputy Crystal Jansen. She would resign and drop her claim in federal court. In return, she would be awarded $527,000. When you read those recent sto- ries, it makes you wonder. Is there a problem at the sheriff’s office? Kozowski’s case seems clearer. There was a verdict in a trial. The county — or rather the county’s in- surer and risk management fund — and the sheriff have to pay up. The sheriff’s office, at least from the trial transcript, seems to have bungled how it handled personnel and cam- paign issues with Kozowski. But even that gets complicated. What if you have a possible person- nel issue with somebody in your department and you are an elected official and he or she is running against you? Do you think that is go- ing to end well? Jansen’s settlement is somewhat less clear — only because there was never a court decision and the par- ties agreed in the settlement not to comment further. Her complaints of gender dis- crimination are public record. She said she was singled out for unequal treatment as the only female deputy supervisor. She also said she did not like the way Sheriff Nelson touched her. Kozowski and Jansen are presum- ably the winners. But what about the residents of Deschutes County? We see this only from the outside. We don’t see the day-to-day work inside the sheriff’s office. We see big price tags on settlements on personnel matters. Those cases are resolved. What’s not resolved is what it means. Editorials reflect the views of The Bulletin’s editorial board, Publisher Heidi Wright, Editor Gerry O’Brien and Editorial Page Editor Richard Coe. They are written by Richard Coe. Mandates are causing uncertainty for businesses BY EUGENE SCALIA Special to The Washington Post The vaccine mandates President Joe Biden announced recently are causing uncertainty for workers and employ- ers — and that’s likely to persist as le- gal challenges are filed that could re- sult in the mandates being set aside. For private-sector companies, the president announced two principal actions: First, an emergency tempo- rary standard (ETS) from the Labor Department’s Occupational Safety and Health Administration (OSHA), which reportedly will require em- ployers with 100 employees or more to mandate vaccines for workers, or require them to present a negative coronavirus test weekly. Employers will have to provide paid time off for employees to get vaccinated and to recuperate from the vaccination, if needed. Still unclear: What documentation of vaccination and testing will OSHA require? Will it order employers to pay for coronavirus tests for work- ers who choose that route? Will those working from home, or those with “natural” immunity, have to be vacci- nated? Will vaccinated workplaces be exempted from mask mandates? And what role will unions play in negoti- ating implementation? OSHA’s rule is expected within weeks. A swift judicial stay of the rule is possible, followed by months — at least — of litigation. Second, the president directed a White House task force to develop, by Sept. 24, COVID-19 requirements for employers that contract or sub- contract with the federal government. What the task force will order is even less clear, though one would expect its requirements to be harmonized with OSHA’s. Unlike some presidential directives, the forthcoming OSHA rule has a le- gal toehold: Emergency temporary standards are statutorily authorized when “necessary” to address “grave danger” in the workplace. (The rule may be in place for six months, during which time OSHA must develop and issue a “permanent” rule.) OSHA al- ready issued a COVID-related emer- gency temporary standard in June, imposing special protocols on the health-care sector. I decided against a COVID-19 ETS when I was labor sec- retary, not because I concluded there was no legal authority but because I thought there were superior ways to address the pandemic in the work- place. Biden retained that approach, except for the health-care sector, until the Pfizer-BioNTech vaccine received full FDA approval. Of course, having a legal toehold doesn’t mean a rule will survive in court. OSHA historically has a poor record of defending emergency tem- porary standards. That’s partly due to procedural con- cerns. Unlike most rules by govern- ment agencies, an ETS is issued with- out prior public review and comment. A public comment period confers more democratic legitimacy on ad- ministrative rules. It also improves the rules substantively. Courts appropri- ately review purportedly “emergency” rules more skeptically. So, in the case of the vaccine ETS, courts will ask why it was “necessary” to preclude public comment, and in one obvious practical sense, it’s not: To help shield its rule from legal chal- lenge, OSHA can release a proposed rule and let the public comment, even if it doesn’t conduct full-blown notice-and-comment rulemaking. Doing so may not satisfy courts’ pro- cedural concerns but would produce a substantively better and more defen- sible rule, informed by the insights of those who must live under it. Expect procedural objections to the OSHA rule to be accompanied by substantive challenges. No one can assess all of a rule’s legal vulner- abilities before release; we have to see what OSHA requires and the ev- idence it offers in support. OSHA must demonstrate “grave danger” that can be addressed only by an immedi- ate vaccination mandate. And it must explain why this grave danger doesn’t require the same response for work- places with 99 workers or, if costs are the reason, why those costs are tolera- ble for companies with 200 workers. Other potential vulnerabilities abound, including how the president rolled out the rule: He presented it as a nationwide public health initiative in which employers, in effect, would be dragooned via OSHA as a means of boosting overall vaccination rates. OSHA’s authority is for grave work- place dangers, not nationwide public health campaigns. In litigation, OSHA will find itself walking back the presi- dent’s explanation. Meanwhile, the mandate for gov- ernment contractors faces potentially higher hurdles. The president is us- ing his authority under the Procure- ment Act to promulgate COVID-19 requirements for employers doing business with the government. And it won’t even be the president who sets the requirements but a White House task force. This simply is not how law is made in this country; this particular overreach could bring an overdue ju- dicial rebuke to Republican and Dem- ocratic presidents’ use of the procure- ment power to set employment policy. I join Biden in urging Americans to protect themselves and others through a vaccination program that is one of President Donald Trump’s most important achievements. OSHA has a valuable role in preventing COVID-19 transmission at work, and many employers have reasonably decided to require that their employ- ees be vaccinated. But in upbraiding unvaccinated Americans, and telling them that he will put their employer and OSHA on their back if they don’t get in line, the president gave a shaky launch to an initiative that was already bound for litigation headwinds. e Eugene Scalia, a Washington lawyer, served as labor secretary under President Donald Trump and as Labor Department general counsel under President George W. Bush. Private companies should hurry up and require coronavirus vaccines BY TIMOTHY L. O’BRIEN Bloomberg I t’s been less than two weeks since President Joe Biden said the fed- eral government would throw its weight behind new COVID-19 vac- cine and testing mandates for corpo- rate America. And there are already signs of progress. Last week, Biden hosted some of the country’s top business leaders at the White House to discuss the push. Afterward, Walgreens Boots Alliance and Raytheon Technologies said all their employees in the U.S. — about 250,000 and 130,000 workers, re- spectively — would have to get vac- cinated. (Walgreens, like some of its corporate counterparts, is allowing workers to enroll in a testing program if they choose not to get a jab.) Other companies instituted stricter vaccine guidelines even before Biden said the Labor Department’s Occupa- tional Safety and Health Administra- tion would craft the new workplace safety rules, which will require vacci- nations or weekly testing for compa- nies with 100 or more employees. Delta Air Lines imposed a $200 monthly health-plan surcharge for its unvaccinated employees, prompt- ing about a fifth of them to get a shot. The move led few Delta workers to quit, a rebuke to naysayers who have said tougher corporate vaccine re- quirements would spark worker re- volts. United Airlines, the first airline company to mandate vaccinations, gave its 67,000 employees until Sept. 27 to get shots, after which they’ll be fired. The airline said employees granted religious exemptions and the like will be placed on unpaid, tempo- rary leave on Oct. 2. Southwest Air- lines, which doesn’t have a mandate, is offering 16 hours of extra pay to workers who get vaccinated. Van- guard Group and Whirlpool, also mandate-less, give their employees $1,000 to get jabbed. The stakes in this battle are obvi- ous. The U.S. has been in a footrace against COVID-19, which has taken advantage of unvaccinated Americans to become a persistent danger. If pri- vate employers mandate vaccines, that might help shift the national response into overdrive and let us catch up. Yet the hodgepodge of corporate approaches, and some of the bureau- cratic and logistical challenges ac- companying Biden’s push, make it difficult to move quickly. Perhaps that won’t be a problem — if delta sub- sides and isn’t replaced by an equally infectious variant. But only 54.5% of the U.S. population is fully vacci- nated, and moving too slowly raises the risk of a brutal fall and winter. Raytheon should be lauded for em- bracing mandates. But the company is giving its employees until Jan. 1 to get vaccinated. That’s almost four months from now — ages in coronavirus time. Some in the business community say they’re waiting for OSHA to promul- gate Biden’s new rules before they roll out vaccination and testing regimes. Separate guidelines from the govern- ment for federal contractors are ex- pected to land by Sept. 24. No matter how quickly OSHA re- leases its rules, a large universe of companies and workers won’t be sub- ject to them. There are 170,400 busi- nesses or so that employ 100 or more workers, accounting for about 65% of the U.S. workforce — approximately 80 million people. The remaining 44 million U.S. workers are employed by 17.5 million or so smaller businesses that won’t have to follow OSHA’s new rules. What’s more, the rules will be en- forceable only in 29 states where OSHA has jurisdiction. Other states with their own federally approved safety agencies will have up to 30 days after OSHA’s guidelines arrive to adopt similar measures of their own. And even where OSHA’s emergency rules apply, they will last only six months. After that, permanent work- place guidelines will be needed. Some companies and states are expected to wage legal battles against OSHA. All of this may make the pace of cor- porate mandates more glacial than it should be. Of course, companies can go ahead and mandate vaccines with- out OSHA, as others have done. But some face resistant workforces. Oth- ers worry that valued employees might head for the exits. Even though Biden’s push has given companies added cover to impose mandates, it’s still not clear how many will do so. While the Business Roundtable, a group representing chief executives, signaled its support for Biden, two other trade groups, the U.S. Cham- ber of Commerce and the National Association of Manufacturers, were lukewarm. Consider how the Consumer Brands Association, a trade group representing heavy hitters in the packaged-goods industry, responded to Biden’s announcement about the OSHA rules: with a detailed letter asking for specifics about how the plan would be implemented and de- manding answers “immediately — not in the weeks federal agencies have signaled it may take or in the months industry has experienced throughout the pandemic.” There’s no question OSHA should act as fast as possible and give com- panies the clarity they seek. But com- panies don’t need the government’s blessing to mandate vaccinations and tests right away. Maybe complaining about how slowly government moves actually means you don’t want to move too quickly yourself. e Timothy L. O’Brien is a senior columnist for Bloomberg Opinion.
