Clay’s Legal Advice: How to Deal with an Employer’s Mandate

CLAY: During the break there I told you I was going to return and discuss the federal vaccine mandate that appears to be blowing up in Joe Biden’s face as the courts are striking it down. And Joe Manchin — a member of his own party, West Virginia Democratic senator — came out against it. That’s significant because it means that the majority of the United States Senate is now opposed to federal vaccine mandates.

Which means it makes it even more difficult for Joe Biden to try to argue that he has the authority under OSHA to force through this federal vaccine mandate. That doesn’t mean however that the arguments in favor of it have ceased. In fact, they are, of course, being doubled down on by Little Red Lying Hood herself, Jen Psaki. If you listen to cut 8 here, she tries to argue that everybody out there who is making an argument against the vaccine mandate has just lost their mind.

Here is her argument.

MIKA BRZEZINSKI: We have seen — and it is proven (snickers), it’s not an opinion; it’s not sort of political, even — that mandates work.

PSAKI: Yeah.

MIKA BRZEZINSKI: How’s that gonna … go? (sputters) How’s it gonna happen? Are we gonna…? Are we gonna see mandates are Republicans going to continue to fight this?

PSAKI: I bet they continue to fight it. No question about it. We saw the — a group of Republicans just tried to shut the government down, because they don’t think that people should have to get vaccinated or get tested. I mean, that’s bananas and crazy. What we’re working to try to do right now is to implement these mandates –uh, which are vaccinate or test, either option, very reasonable — for businesses around the country. And businesses —


PSAKI: — about 60% of businesses — are already doing this.

CLAY: Okay. So this is significant, because I know a lot of you out there are being forced or feeling forced to get a vaccine. So that is the argument that Jen Psaki and crew — that was on Morning Joe, I believe — making the argument that it’s bananas and crazy not to have a vaccine mandate. Well, Senator Mike Lee fired back, and said basically that he doesn’t understand how anyone could use government force to tell someone they need to cooperate when it came to vaccine mandates.

SEN. LEE: I think it’s difficult to understand why anyone would want to use the overpowering force of the federal government to tell someone that if they don’t cooperate with the ordained presidential medical orthodoxy, they will be fired. This isn’t going away. It’s going to come back up again. It will come back up in any future voterama. It’s going to come back again every time we get the opportunity.

CLAY: So here’s the argument that I would lay out. If your job is arguing that you have to get the vaccine because of the Biden administration mandate — and, remember, Joe Biden tried to argue that if you are employed by a business that has over 100 employees, then you are obligated to follow this OSHA regulation and to comply with the vaccine mandate by a set date; I believe it was January 4th. The courts have struck down that mandate.

So what I want all of you out there listening to know and have the ammunition for is you should be able to respond to your employer if they are still enforcing this mandate and arguing… Again, this is key. If they’re arguing the reason why you have to do it is because of Joe Biden’s regulation, you should have the ammunition to respond to your employer and say, “Federal courts have actually struck down that mandate. It is not in effect right now.”

So you don’t have the ability to defer to Joe Biden and argue, “Hey, you have to get a vaccine right now under Joe Biden’s order because that order has been found to be unconstitutional,” and I think there are a lot of you out there who have not been informed by your employer, that may well have sent out an email, may well have had a big public meeting when Joe Biden issued this mandate.

I bet they haven’t updated you and said, “Oh, by the way, the courts have struck down and said this is unconstitutional.” I want you to be able to know that right now that mandate is not in effect. Now, if you’re a federal employee, that’s a little bit different of a different standard because Joe Biden has more control over that. But Joe Manchin and the majority of the United States Senate now have actually repudiated the Biden administration.

The Fifth Circuit has struck it down. It is not in effect for private businesses, to my knowledge, anywhere in the country right now. I think this is wildly important for everyone out there listening right now who is at work: You have some ammunition in your favor to be able to say, “No, I am not going to get this vaccine because the courts have struck down that mandate.”

And the United States Senate, the majority of them, have now said they do not believe Joe Biden has the authority to do this either. Now, I’m not saying if your employer is trying to make an argument for another reason, right? There are all different sorts of things that employers can try to do. But many of them try to avoid having their own policy on covid vaccine and use this Biden administration OSHA policy as the reason that they were going to try to make this a reality.

I just want everybody to be aware of this, because most people in the media haven’t done a good job covering this, and they certainly haven’t talked about it. I thought it wildly significant last night that Joe Manchin put out that statement to make it clear that there’s no legislative authority whatsoever to supplement Joe Biden’s attempted, I believe, unconstitutional covid vaccine mandate.

Now, I want to reiterate again, too — and Buck and I always say this, and Buck is out sick; he doesn’t have covid but he’s out sick, can barely talk, and I’m in solo today — I’m not anti-everybody getting the vaccine. I believe that if you are over 65 years old you should get the covid vaccine and you should also get the booster. I told my own parents to do that. That’s my advice.

Obviously, I don’t tell my parents to do anything. (chuckles) They make their own choices. They raised me. They can make their own choices about their health. But I told them, “Hey, if I was you this is what I would do,” they did. Buck had the same conversation with his parents. But if you’re listening to me right now and you’re 35 years old and you’re healthy?

You may have already had covid like I did, and your employer is trying to tell you that you have to get the covid vaccine to keep your job because of Joe Biden’s mandate? No. There is no legal authority for that mandate right now. I think a lot of employers haven’t even realized it because they wanted to use the Biden vaccine mandate as justification, and I haven’t seen a lot of media coverage of it.

It’s not going to surprise you that CNBC and MSNBC and the Washington Post and the New York Times aren’t spending a lot of time saying, “Hey, employees out there? This is a big deal. You need to be aware of what actually is going on and what your legal rights are,” and I hope the millions of you out there who will hear this discussion will at least be better informed than you otherwise would based on what is going on right now.

I want you to make sure that all of you are aware of the constitutional rights you have, and also will stand up for your freedoms despite the fears of others. As I keep saying — and I think it’s significant — your fears don’t cancel out our constitutional freedoms. The Constitution matters more in times of peril, more in times of danger, more in times of fear than it does in times of peace. And I am hopeful that many of our judges will finally stand up to this unconstitutional overreach that we are seeing from the Biden administration as it pertains to covid vaccine mandates.

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