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.