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November 7th, 2021:

Weekend link dump for November 7

Five thousand Saturdays of the Grand Ole Opry.

“Years ago, someone mistakenly put an image of me on a public domain site, and now apparently I am on products all around the world.”

“The Defamation Suits That Could Help Put an End to Trump’s Big Lie”.

“National Advocates for Pregnant Women painted a grim picture of pregnant people increasingly being prosecuted around the country for a miscarriage.”

“That’s a weid way to spell justice.”

Emergency rooms around the country are now overflowing with the non-COVID patients who had been delaying treatment because they couldn’t get it before due to all of the COVID patients.

“But then the polarization of death kicks in as COVID spreads everywhere and county-level responses (both individual and governmental) start to vary. By now, it’s hard not to think that these gaps are going to continue to widen, given where resistance to vaccines is highest.”

“By violating his legal duty to do what he could to end the unlawful occupation of the Capitol, Trump became an accomplice to that crime. He is subject to the same punishment as the rioters who entered the building.”

The Trojan Source bug is another thing to keep an eye on.

RIP, Jerry Remy, former Red Sox player and longtime broadcaster.

“The Casual Sexism Displayed at SCOTUS as the Justices Debated the Future of Abortion Rights”.

I’m sorry, but unless your girlfriend’s pet monkey bit a child on Halloween, you have nothing to complain about.

Would you like to own one of Fonzie’s leather jackets? Well, now you can.

“The reality is that if you live in the Eastern time zone, World Series games have ended after your kid’s bedtime for close to 50 years.”

How Puerto Rico became the best-vaccinated place in the US.

“if your dog has a costume with arms attached, please deposit them in this thread”

In less than two years, more people in the US have died from COVID than they have in almost 40 years of AIDS.

RIP, Ronnie Wilson, co-founder of The Gap Band.

“The Tigers haven’t won a World Series since that magical year of 1984. Yet somehow some of the best players of the last 12 or so years have come from the Tigers’ organization.”

RIP, Margaret Shulock, cartoonist who contributed to “Six Chix” and “Snuffy Smith” and also worked on “Apartment 3G”.

The employer vaccine mandate is here (and on hold)

Here are the details.

Deadline is Jan. 4: The first rule, issued by the Occupational Safety and Health Administration, covers companies with 100 or more employees, applying to an estimated 84 million workers. Companies must ensure that their workers are either fully vaccinated against COVID-19 by Jan. 4 or that they test negative for COVID-19 at least once a week. The rule will take effect as soon as it’s published in the Federal Register.

Workers must get paid time off to get vaccinated: Under the OSHA rule, employers must pay workers for the time it takes to get vaccinated and provide sick leave for workers to recover from any side effects.

Employers don’t need to pay for testing: In a move that appears designed to push workers to choose vaccinations over testing, the rule does not require employers to pay for or provide testing to workers who decline the vaccine. However, collective bargaining agreements or other circumstances may dictate otherwise.

Unvaccinated people must wear masks: Unvaccinated workers must also wear face coverings while on the job.

Health care workers don’t have testing option under separate rule: A second rule issued by the Centers for Medicare & Medicaid Services requires some 17 million health care workers to be vaccinated by the same deadline, Jan. 4, but with no option for weekly testing in lieu of vaccination. The rule covers all employees — clinical and non-clinical — at about 76,000 health care facilities that receive federal funding from Medicare or Medicaid.

Earlier, Biden had ordered federal workers and contractors to be vaccinated, with no testing option. Federal workers have until Nov. 22 to get the shots, while federal contractors have until Jan. 4.

[…]

In the case of the OSHA rule, enforcement will largely fall to companies themselves. With only a couple thousand state and federal OSHA inspectors nationwide, there is no mechanism for checking up on millions of workplaces to see whether they are in fact keeping vaccination and testing records.

Rather, OSHA inspectors will mostly respond to employee complaints and add COVID-related inspections to their to-do lists when they are already on-site somewhere. Employers who violate the rule can face fines of up to $13,653 per violation for serious violations and 10 times that for willful or repeated violations.

The company I work for will fall under this mandate. They have been waiting for the official rules before saying what the company policy will be, so I expect to see a communication about that soon. I have a co-worker who is Not Happy about this. I’m sure you can guess how I feel.

How will it affect Texas?

The White House said the new rules preempt any state and local laws, weakening Gov. Greg Abbott’s ban on COVID-19 vaccine mandates, employment lawyers said.

Abbott issued an executive order last month banning any entity in Texas, including private businesses, from requiring anyone to get the COVID-19 vaccine. The new Biden administration rule would void part of the ban, but it would still apply to everyone else in the state, including local governments, school districts and smaller businesses.

[…]

The conflicting vaccine mandates put the many Texas businesses that receive federal contracts in a tough position: Comply with federal law and violate Abbott’s ban, or comply with Abbott and turn down business from the federal government.

American Airlines and Southwest Airlines said they would continue requiring employee vaccinations despite Abbott’s new order.

See here, here, and here for some background. As the story notes, the state of Texas has filed a lawsuit against the national mandate for federal contractors, which has not yet had a court date. A day after the updated OSHA rules came out for employers, Texas filed another lawsuit, because of course they did.

Texas Attorney General Ken Paxton sued the Biden administration on Friday over new federal COVID-19 vaccine rules announced the day before, which order big businesses to mandate vaccination against the virus among their employees by Jan. 4 or require regular testing.

The new federal rules preempt state and local laws, including part of Gov. Greg Abbott’s statewide ban on vaccine mandates.

“The Biden Administration’s new vaccine mandate on private businesses is a breathtaking abuse of federal power,” Paxton said in a written statement Friday.

The U.S. Labor Department, which drafted one of the rules, “has only limited power and specific responsibilities,” Paxton said. “This latest move goes way outside those bounds. This ‘standard’ is flatly unconstitutional. Bottom line: Biden’s new mandate is bad policy and bad law, and I’m asking the Court to strike it down.”

Obviously, I’m not going to take Ken Paxton’s word on that. Texas is not the only state suing over this order, and a little searching led me to this AP story about the other lawsuits, which has some prognostication on the suits’ viability.

Lawrence Gostin, a professor at Georgetown University Law Center and director of the World Health Organization’s center on health law, said the half-century-old law that created OSHA gives it the power to set minimum workplace safety measures.

“I think that Biden is on rock-solid legal ground,” he said.

Critics have taken aim at some aspects of the requirement, including that it was adopted as an emergency measure rather than after the agency’s regular rule-making process.

“This is a real emergency,” said Gostin, who has spoken with the Biden administration about the requirement. “In fact, it’s a national crisis. Any delay would cause thousands of deaths.”

[…]

So far, courts have allowed businesses on their own to require employees to be vaccinated. But Michael Elkins, a Florida-based employment lawyer, said those decisions do not necessarily mean judges will rule the same way when it comes to the federal government’s requirement.

“You may see a federal judge, or a bunch of them, say, ‘This is just overreach,’” Elkins said.

Benjamin Noren, a New York-based labor lawyer, said he thought the rule is likely to be struck down because OSHA was intended to deal with workplace hazards such as chemicals, not a virus. He said OSHA has made 10 emergency rules in the last five decades. Of the six that were challenged, only one survived intact.

“It’s an innovative use by the Biden administration to figure out some way to mandate vaccination in the private sector,” Noren said. “I hope it works. I have doubts.”

We didn’t have to wait long to find out. I started this draft on Friday morning when the story was just the OSHA announcement. By the time I finished the initial draft, the lawsuits were announced, so I added that on. Somehow, I figured there wouldn’t be any more news until the next week, so I waited to publish on Sunday just to spread things out a bit. That turned out to be a poor decision.

A U.S. federal appeals court issued a stay Saturday freezing the Biden administration’s efforts to require workers at U.S. companies with at least 100 employees be vaccinated against COVID-19 or be tested weekly, citing “grave statutory and constitutional” issues with the rule.

The ruling from the United States Court of Appeals for the Fifth Circuit comes after numerous Republican-led states filed legal challenges against the new rule, which is set to take effect on Jan 4.

In a statement, Solicitor of Labor Seema Nanda said the Labor Department was “confident in its legal authority” to issue the rule, which will be enforced by the Occupational Safety and Health Administration (OSHA).

“The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them,” she said. “We are fully prepared to defend this standard in court.”

A copy of the order is here. If you’re thinking it doesn’t say much and stands in stark contrast to the court’s actions on SB8, you’re not alone.

If we ever get around to expanding the Supreme Court, could we maybe give some thought to doing the same to the Fifth Circuit? Because there are some trash judges on that court, and something needs to be done to restore some sense of justice there. The Biden administration has until Monday at 5 PM to file its response, so look for more updates soon. I won’t sit on any of them. WFAA has more.

The AstroWorld concert tragedy

Just awful.

At least eight people are dead and dozens more injured after a sold-out crowd of roughly 50,000 surged during rapper Travis Scott’s performance late Friday at the Astroworld Festival outside NRG Park, overwhelming security forces and resulting in one of the deadliest concerts in U.S. history.

As Scott’s performance started shortly after 9 p.m., the chaotic crowd seemingly swallowed everyone in it, Instagram user SeannaFaith wrote.

“The rush of people became tighter and tighter. .. Breathing became something only a few were capable. The rest were crushed or unable to breathe in the thick hot air,” she wrote. “It was like watching a Jenga tower topple. Person after person were sucked down…. You were at the mercy of the wave.”

“We begged security to help us, for the performer to see us and know something was wrong,” she continued. “None of that came, we continued to drown.”

Then, one person fell. And another.

“We had a mass casualty event here at Astroworld,” Houston Fire Chief Samuel Peña said.

Seventeen people were taken to the hospital, 11 of whom Peña described as being in cardiac arrest. Eight are confirmed dead. Some of the victims might be children.

Harris County Judge Lina Hidalgo called it an “extremely tragic night,” as families awaited word on whether their loved ones were safe. The Houston Police Department is in the process of identifying victims at hospitals, and a reunification center was set up at the Wyndham Houston Hotel at 8686 Kirby. People searching for loved ones can also call 832-393-2991 or 832-393-2990.

“Our hearts are broken,” Hidalgo said. “People go to these events looking for a good time. It’s not the kind of event where you expect to find out about fatalities.”

The news conference with Mayor Turner and Judge Hidalgo came on while I was drafting this, which confirmed that the casualty count remains at eight, including two people under the age of 18, and that there were no people known to be missing at that time. There will be an investigation into how this happened. My heart goes out to everyone who was affected by this tragedy.

Runoffs will be on December 11

As is usually the case, the second Sunday in December for municipal and school board/community college runoffs.

Runoff elections will be held Dec. 11, the Harris County Elections Department announced Friday.

Four Houston ISD board seats, and individual council races for Bellaire and Missouri City, as well as a trustee race in the Houston Community College System will be decided in runoffs after none of those candidates won more than 50 percent of the votes cast.

Early voting is scheduled to begin Nov. 29 and end Dec. 7. Voters can cast ballots between 7 a.m. and 7 p.m. during early voting, except for Dec. 5 when polls will be open from noon to 5 p.m.

Election day voting hours will run from 7 a.m. to 7 p.m., and permit individuals in line by the cutoff time to vote even if their ballot is not cast until later.

Elections officials said they must wait for a Nov. 8 deadline before completing a final canvass of results and officially announcing runoff races. Four of five open HISD board seats were forced into a runoff, per unofficial returns.

The runoffs include four HISD trustee races, one Houston Community College board seat, and a single city council race in Bellaire and Missouri City.

The HISD runoffs have the potential to bring significant change to the Board of Trustees, though I think in the end the effect is likely to be fairly small.

Three incumbents — Elizabeth Santos in District 1, Sue Deigaard in District 5, Holly Flynn Vilaseca in District 6 — all were the leading vote-getters in their races, but failed to garner at least 50 percent of the ballots cast. Trustee Anne Sung in District 7 finished about 4 percentage points, or 631 votes, behind challenger Bridget Wade in unofficial returns. Neither passed the 50 percent threshold.

The only HISD race decided by voters Tuesday was for District 9, where Trustee Myrna Guidry fended off two challengers with nearly 61 percent of the vote.

The outcome of the runoffs, which will be scheduled for next month, could alter the board just as the district has reached a sense of stability with new Superintendent Millard House II preparing a multi-year strategic plan and the district considering its first bond referendum in nearly a decade.

The district still faces a potential takeover threat by the Texas Education Agency, but that effort remains tied up in litigation.

Two paths led to runoffs, said Jasmine Jenkins, executive director of education nonprofit Houstonians For Great Public Schools.

First, she said, there have been national conversations led by conservatives to encourage people to run for local office, sometimes by playing to racial divides and appealing to grievances, such as those surrounding mask mandates to fight the spread of COVID-19.

At the same time, and more locally, Jenkins said there may be voters who are happy with the district’s direction and current stability but wary of any board members “steeped in the dysfunction of years past.”

[…]

“I am still cautiously optimistic about what is to come no matter what the results of the runoffs are,” Jenkins said. “I am hopeful not just for stability and improved governance, but I am hopeful that the bold ideas of a new superintendent will be really supported and will be given shape by the vision and direction that the board gives him.”

I’m the least worried about Sue Deigaard, who came very close to getting fifty percent. Elizabeth Santos is in a similar position as she was going into the 2017 runoff, except this time she’s facing a Latina instead of an Anglo opponent. I think she’s a favorite to win again, but it’s not a sure thing. This is the one race where the ideology of the Board member won’t change that much either way, at least on the current hot button issues like masking and whatever the “critical race theory” debate is supposed to be about.

I think Holly Maria Flynn Vilaseca is also the favorite to win in District VI, mostly because her opponent is a clueless perennial candidate, but the margin in round one was a lot closer than I would have liked. She’s going to need to work it to win, and I really hope she does because Kendall Baker would be a disaster on the Board. As for Anne Sung, she’s clearly in trouble. Running behind a candidate who has more money than you is never a good spot to be in. This is the one race in which the Chron will have to redo their endorsement, and I’ll be very interested to see if they care more about Bridget Wade’s opinions on those hot button issues or the quality of Anne Sung’s apology in the Saavedra/Lathan open meetings fiasco. They either overlooked or didn’t notice the “critical race theory” issue with their initial endorsement, so we’ll see.

As for HCC, we’re stuck with Dave Wilson again sigh but at least the runoff in District 8 between incumbent Eva Loredo and challenger Jharrett Bryantt isn’t a threat to the board’s functioning. Please remember that these elections are as important as the November elections, and make a plan to vote if you live in one of these districts.