Urgent Legal Bulletin | OSHA Vaccine Mandate

How to Beat an Overreaching Government

What Every Construction Company with More than 100 Employees Must Know Now

You have no doubt heard about the vaccine mandate, about Governors, including Governor Ron Desantis, who intend to challenge it, and may have even heard, in passing, about a court halting the vaccine mandate. This legal bulletin separates the fact from the fiction and provides you with important information you must know to protect your liberty and your livelihood.

Crafted by the Framers at the Constitutional Convention of 1787, the preamble of the Constitution begins with “We the People,” a phrase that has transcended American history. A noble phrase, combined with deep emotion and patriotism, breathes life into the fabric of our nation’s fundamental values that the people have the popular sovereignty over the government.

On September 9, 2021, President Biden issued his “Path Out of the Pandemic” memorandum and Executive Order 14042 to the American people, which broke our nation’s centuries long value that We the People decide what is best and not the government. Through the Occupational Health and Safety Act (OSHA), the President is mandating that businesses with over 100 employees must be fully vaccinated against COVID-19 or be subject to weekly COVID-19 testing, while wearing a mask during work hours. Additionally, the Federal government is initiating a rarely-used emergency temporary order (ETS) to streamline this executive overreach onto the American people.

Temporary Stay

On November 6, 2021, the Fifth Circuit Court of Appeals temporarily blocked the OSHA mandate from depriving freedom from hard-working Americans. A three-judge panel issued an emergency stay to prevent the enforcement of the new rule to allow for full briefing and arguments on the merits of the case.

Regardless, companies with over 100 employees need to be prepared for a legal fight, as the administration will attempt to unconstitutionally justify its means to reach its end, and this stay is temporary only.

False Justification of Using OSHA

OSHA’s purpose is to ensure workplace and jobsite safety, yet this executive order is political in-nature and does not specifically relate to either. OSHA is being used as a catalyst to further enhance the administration’s agenda to mandate vaccines and to further enhance the Federal government’s grip on American daily life.

While OSHA, a bureaucratic agency, typically takes seven years to create a rule for the workplace, the President’s executive order has been fast-tracked to be fully implemented in just four months. The emergency temporary order has only been issued nine times since it was established in 1971. Of the nine issuances, six were challenged in court and only one order survived the legal system. Each of these challenged orders governed the healthcare facility setting where protecting against medical dangers is a more compelling interest. This remarkable shift in rule-making expands this regulatory overreach to every business with over 100 employees in every sector of our economy.

The agency’s justification to use the ETS is to address a “grave danger,” but this legal standard cannot be upheld. This ETS order affects all employees at any age, whereas the country has been informed from the initial COVID-19 lockdowns in March 2020 through present day, that mostly the elderly were at risk of the disease. Even in the agency’s own conclusions, OSHA reaffirmed that not all workplaces face this grave danger. This grave danger notion is another illegal justification to directly interfere in the lives of everyday Americans.

Right to Privacy

It has been established through the Federal judiciary and legislature that the role of government in the lives of private citizens is to be limited. The right to privacy was established by the Supreme Court of the United States in Griswold vs Connecticut (1965), which has been used as case precedent expanding to other areas of private life. Additionally, Congress has taken the issue of privacy in the healthcare sphere to a vote, as it did in 1996 with the Health Insurance Portability and Accountability Act (HIPPA). HIPPA created national standards that protected patient information from being disclosed without the patient’s consent or knowledge.

The OSHA executive order immediately puts an individual’s choice on display to others. The employee can either comply with the order to obtain the vaccine, which automatically lets the individual enjoy normal life in the workplace, or the individual can subject him or herself to weekly testing and mask adherence. Regardless of the choice, colleagues in the workplace know the individual choice of the employee. This forced disclosure of health information by display breaks the legal standard our nation’s legislature and judiciary has already decided.

Be Ready to Defend Your Company

The OSHA mandate will be enforced through OSHA’s Compliance Safety and Health Officers. OSHA will issue a Citation but is historically required to give the contractor a reasonable time within which to cure (abate) the violation, though that will not eliminate the penalty if one is assessed. The abatement period specified by OSHA is often unreasonable, but contractors may petition for modification of the abatement date. The petition must include a number of details, such as steps taken to abate the issue by that point, the additional time needed, interim steps implemented to safeguard employees during the abatement period, and a certification that the petition for modification has been posted in a manner visible to the contractor’s employees. This petition must be timely filed or the contractor will have waived its right to seek modification.

The contractor may also wish to contest the Citation in whole or in part. This may be necessary and prudent because an uncontested Citation may lead to more frequent OSHA inspections and increased fines in the event of future violations. A Citation may be contested in only two ways: (1) an informal conference and (2) a formal notice of contest. A formal notice of contest must be initiated with the Assistant Regional Director within fifteen business days of the Citation. The informal conference does not have any impact on that deadline, so if an informal resolution is to be reached, the contractor must initiate the informal conference quickly. The contractor has the right to and should be represented by counsel during both an informal conference and the formal contest proceeding.

The contest proceeding is a formal legal process before the OSHA Review Commission, with a presiding Administrative Law Judge. OSHA will be represented by legal counsel throughout the proceeding. These proceedings are governed by complex rules of procedure and standards. At conclusion of that proceeding, the Administrative Law Judge will prepare a written decision which may be appealed to the appropriate federal circuit court.

Conclusion

Our country’s founding in 1776 occurred because our colonial past prevented the free expression of choice; the British crown dictated life by government mandates that were not consented to by the governed. Our Founders sacrificed their lives, fortunes, and sacred honor so we, as Americans, could live in a country full of peace, joy, and liberty. The Framers of the Constitution wrote a perpetual reminder to succeeding generations that “We the People” represent the people’s values. And those three words established what our Constitutional Republic was to embody. We the People can choose our leaders. We the People can choose our careers. We the People can choose our own health decisions. It is not the role of the government to dictate how Americans make individual choices; it’s the people’s.

Thankfully our Constitution affords the construction industry relief from the terrible cost a universal vaccine mandate will place on an already strained labor force.

If you would like more information about the OSHA mandate, the temporary stay, or what you can do to protect your construction company from an OSHA citation, Zinzow Law is here to help. We protect those who Build America.

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Real Justice is Time Sensitive and We are Failing Those We are Supposed to Serve

We love our esteemed judiciary in Florida, but we love real justice more and therefore must offer observations which may be hard for some to hear. The Honorable Chief Justice Canady astutely observed at his annual state of the judiciary that a strong and independent judicial system is necessary to preserve our great nation. His Honor continued that the judiciary has served this function well through the era of COVID-19. This advocate could not disagree more, but perhaps more important than an advocate’s opinion, is the opinion of the very people the system exists to serve. It has been long said that justice delayed is justice denied. As the Chief Justice acknowledged, “many cases will not be resolved until there is the imminent prospect of a trial.” Our state is open for business. We can walk into a grocery store, a hardware store, a restaurant, or a theme park, but we cannot walk into a courthouse to conduct a hearing or try a case. The citizens of our state have real hurts, real harms, and real needs that can be resolved only by the courts, and they must be resolved now. These very citizens are railing against and have lost faith in their judiciary. Legal professionals all around this country are, in droves, counseling their clients to move away from the courts and toward arbitration because real justice is time sensitive. The courts do not need resources from the legislature to tackle the mounting backlog; they need to re-open the doors of justice now.

‘Tis the Season of Miracles that Let Freedom Ring

Never Letting the “Thanks” be Taken from Thanksgiving

Saved from Darkness, Today We Give Heartfelt Thanks

We Will NEVER Forget

September 11^th, a day that America will always remember. Team Z would like to ask you to take a moment of silence with us to honor all the innocent people who lost their lives on this tragic day in American history.

We will never forget. – Team Z

Florida’s Future Coastal Construction … or Lack Thereof?

Florida is one of the most tourist driven destinations in the United States. The economy thrives on the distinctive attractions this state has to offer and, of course, the patrons who invest in them. The Sunshine State attracts visitors far and wide for its beautiful beaches, shady palms, and abundant state parks. Not to mention all the snowbirds who flock here and make this their migratory home for part of the year. Needless to say, Florida’s beauty is captivating which makes it a wonderful spot to call home, the perfect place for a family vacation, or a much-needed getaway. However, being almost completely surrounded by water has made this peninsula a concern for potential sea-level rise for many years. Not to worry though, all Floridians are required to own life jackets, scuba gear, and a snorkel in case of emergency. In all seriousness, the Florida government has concerns for Florida’s future and whether this future may be underwater, at least in some places. Of course, if the government is concerned, it begs the question: should Floridians also begin to worry? To address these concerns, a new law has passed that will require consideration for possible rising sea levels and flooding prior to beginning public coastal construction projects. This law is formally known as “Senate Bill 178 – Public Financing of Construction Projects”, which passed unanimously by 153 Florida legislators and will take effect in July 2021. With the passing of Senate Bill 178, Florida’s coast will likely have a very different look in the coming years. Could this mean no more beachfront condominiums, skyrises or parking garages? While little information is known at this time how this law will directly affect Florida’s construction industry, speculation can be made that it will certainly make an impact.

As it stands, Florida’s governing body is apprehensive about the climate related changes we may see here in Florida. Much of these concerns derive from the impending financial problems and property damage caused by flooding. In addition to those looming financial issues, the state is also preparing to spend at least $4 billion to determine sea level rise solutions which would include “protecting sewage systems, raising roads, stormwater improvements and (creating) seawalls”3. While understanding and preparing for potentially devastating impacts to Florida’s ecosystem is understandably important, Senate Bill 178 is actually the “first major piece of climate-related legislation in a decade” . This legislation was implemented with the hopes of limiting damage to Florida’s structures lining the coastal regions if sea level rise were to continue. These worries are heightened as a result of the studies conducted by the various entities who observe and predict sea-level rise. These predictions, although they drastically differ in number, all seem to indicate that Florida will see higher sea levels at some point in time. That time frame, of course, also varies significantly. For instance, the Southeast Florida Regional Climate Change Compact Sea Level Rise Work Group has estimated that the rise in southeast Florida “could be as much as 6.75 ft by 2100” . Whereas the Tampa Bay Climate Science Advisory Panel “anticipates a rise of 8.5 ft by the end of the century”2. This uncertainty as to how far and for how long Florida’s land boundaries may stretch is why lawmakers are proceeding with caution for future developments along Florida’s coast. The current measurements depict that Florida’s sea level has risen 8 inches since 1950 and the velocity of this rise is only increasing as the years continue . Surprisingly, scientists measure the sea level every six minutes to have an indication as to the rate these changes are actually happening3. Limiting the coastal development may prevent the need for the state step in later and fix any future damages attributed to rising sea levels. As part of the analysis conducted by the Florida Senate related to Senate Bill 178, they determined that Florida could see a property value loss as high as $300 billion by 21002. Hence, their need and desire to take these somewhat preventative measures now.

As for the requirements imposed by Senate Bill 178, these will consist of tests, scientific research, and assessment to determine how a particular construction project may be impacted by a rising sea level. These tests are called “Sea Level Impact Projections”, also known as “SLIP” studies. These studies are supposed to assess the “flooding, inundation, and wave action damage risks relating to the coastal structure over its expected life or 50 years, whichever is less” . In addition to that, the assessment must also ascertain the “potential public safety and environmental impacts resulting from damage to the coastal structure, including, but not limited to, leakage of pollutants, electrocution and explosion hazards, and hazards resulting from floating or flying structural debris”4. As of now, there is not a lot of information on the exact standards of these SLIP studies and how they may impact construction projects. However, it is known is that the Florida Department of Environmental Protection (FDEP) is responsible for developing those standards and establishing the requirements that state-financed constructors will need to abide by prior to commencing work on a project. With that being said, the FDEP will also have the power to enforce civil action against any state-financed constructor who violates these requirements, including injunctive relief and the ability to retain repayment of all the state funds that were spent on the project. However, it is worth noting that this piece of legislation does at least limit the government from seeking damages if civil action is brought forth. Rather than take any unnecessary risk, it is important for constructors who are performing work on state funded coastal construction projects to ensure they are in compliance with this new legislation. Otherwise, they may be liable for paying back thousands, or even millions, of dollars for not adhering to this new mandate.

While change can be a good thing, it is something most people have a considerably difficult time adapting to. Unfortunately, when it comes to following the law, there is not usually a grace period allotted for these new adjustments. Senate Bill 178 will likely cause visual changes here in Florida. We can expect to see a decline in coastal construction and development, as well as changes that are not as easy to see. The changes that will be much more difficult to notice are the ones where the majority of the population are unaffected. With the passing of this legislation, it may cause significant delays, cancellations, and limitations on construction projects. From that, could come profit loss, economic decline and job reduction. Most importantly, and what has not been addressed enough, would be how this legislation could diminish the Florida construction industry as a whole. While this is currently only impacting publicly funded construction projects, a previous version of this bill applied these requirements to private construction as well. While it may be too soon to tell, it would not be a surprise to see implementation of this bill to all coastal construction projects in the future.

Tifffani Sprague, a Paralegal working with the construction industry attorneys at Zinzow Law, LLC. For more information, or to inquire about a free seminar on this or other legal topics, email info@zinzowlaw.com, or visit www.zinzowlaw.com.

Courage Required-Courage Inspired

Thomas Hobbes, the author of “Leviathan,” written centuries ago, conveyed his thoughts to the world about a properly functioning and safe society. Hobbes wrote about inherent liberty, but also about our duties to one another through both good and challenging times. Hobbes advocated that we each give away to a government a small piece of our innate liberty; that we empower an executive government to protect us from each other and from our worse human characteristics: greed, power, irrationality, fear, and unkindness.

Our government today — and indeed democracies throughout the world — were modeled, in significant part, on these principals. Yet, as Hobbes recognized, government is of the people, by the people, and in principal, for the people. Being of and by the people, it is susceptible to the same human characteristics as society itself: greed, irrationality, power, fear, and unkindness. Accordingly, Hobbes logically advocated that there also be a check on government. We are those protectors. We are judges, lawyers, paralegals, clerks, assistants, administrators, executives, bailiffs, and all those who support the justice system.

This system has always been grounded in justice and the protection of the weak from the strong. Yet, the law and its deployment or restraint has always been imperfect. This is why, since time immemorial, those members of society who have been privileged enough to serve the law have also had as their charge the duty to protect it. We are the greatest threat to those who act with greed, power, irrationality, fear, and unkindness.

Sadly, when our profession is needed most, it has vanished. Trials have been postponed indefinitely. Law firms lay quiet. Judicial progress has been reduced to a crawl. William E. Gladstone is oft cited as the source of that centuries’ old truism: “Justice delayed is justice denied.”

The order of society depends upon our system of justice. We are privileged to serve the third co-equal branch of government, and with great privilege comes great responsibility. We must live, speak, and act with courage and get the wheels of justice moving again.

All members of Team Zinzow Law

Trinity, Florida

Have Faith in One Another

Ethical Dilemmas Faced by Paralegals

It is mandatory for attorneys to comply with the American Bar Association’s (ABA) Model Rules of Professional Conduct (Rules). These Rules are essentially a code of ethics and define a lawyer’s professional and personal responsibility. Likewise, a paralegal must follow and abide by the same ethical Rules as an attorney. NALA, The Paralegal Association (NALA) created 10 Canons that are based on the ABA’s Rules and paralegals are urged to follow these Canons. Canon 10 provides that a paralegal’s conduct is guided by the Bar Associations’ codes of professional responsibility and rules of professional conduct. Failure of a paralegal to abide by one or more of the Rules can create an ethical dilemma. In addition, if clients do not trust their lawyer or paralegal due to violations or manipulation of the Rules, it is only a matter of time before you lose that client. The paralegal plays a crucial role in maintaining the ethical standards of a firm. Exactly how does a paralegal recognize an ethical dilemma to begin with?

The majority of paralegals are well aware of the most common ethical rules and follow them everyday. These Rules state that a paralegal shall not:

· Enter into the attorney-client relationship;

· Negotiate fees with a client;

· Appear in court on behalf of a client; and/or

· Give legal advice

In other words, the Unauthorized Practice of Law or “UPL”. UPL is described in more detail below.

However, there are some additional Rules that, if not strictly adhered to, can create a fine line between violating a Rule and not violating a Rule. This fine line can create an ethical dilemma for the paralegal. Some examples of these ethical conundrums are identified below.

Unauthorized Practice of Law

Even though UPL was briefly mentioned above, it still has its fine line elements. As a paralegal becomes more knowledgeable in specific areas of law, it may be tempting to answer legal questions a client may have or offer advice on a legal issue. A paralegal cannot give advice. Doing so is the Unauthorized Practice of Law. If a client does have legal questions or is asking for advice, simply relay the client’s questions to the attorney and then give a response to the client. “Although the attorney has the primary obligation to not permit a nonlawyer to engage in the unauthorized practice of law, some states have concluded that a paralegal is not relieved from an independent obligation to refrain from illegal conduct and to work directly under an attorney’s supervision.” See the ABA Model Guidelines for the Utilization of Paralegal Services.

Confidentiality (In the workplace and at home)

Second to UPL, the most important ethical responsibility of a paralegal is maintaining the confidentiality of the client. A paralegal should never discuss a case or client with anyone outside of the legal team. This includes no discussions with your spouse, friends, or family, even if using vague descriptions. Not only can this jeopardize the rights of the client but it may also assist the case being made by opposing counsel, giving them the advantage, if client information was to be obtained.

Conflicts of Interest

A paralegal should ensure that there are no conflicts of interest for each case you are working on. If any are found, the supervising attorney needs to be notified immediately and asked to be removed from that case. If a conflict was ignored, opposing counsel could bring up the conflict of interest and win the case on that alone.

Exhibit Personal Integrity and Competence on a Professional Level

Paralegals serve as representatives of the law and are expected to maintain a high level of professional conduct, both within the workplace and in their personal lives. If not, a paralegal may lose his/her credibility and/or their job. A paralegal must perform their work efficiently and accurately and constantly strive to increase their knowledge and skill set.

Role of Technology

Technology has created new ethical issues for paralegals and attorneys. The use of social media, blogs, and e-mail has caused numerous issues among clients and law firms. Giving legal advice or exchanging information using the methods above can cause ethical concerns if you are not sure who you are sending information or advice to or who might be able to view it. This murky area is becoming very complex.

Conclusion

Always trust your gut. If you think there might be an ethical issue, there probably is. Do your research. Review your local Bar Association’s Rules of Professional Conduct, the ABA Model Rules, and the NALA Canons. If you still are not sure, contact a trusted paralegal and/or attorney outside your office and seek their opinion.

It is critical for a paralegal to take the Rules seriously, abide by them, and be able to identify potential ethical dilemmas. Failure of a paralegal to follow the Rules can result in a paralegal or attorney facing sanctions, fines, or jail time. If any of the above occur, a paralegal can be sure to have their “registered paralegal” or “certified” status revoked by the State or Association that issued the designation.

Kimberly Ross, a Certified Paralegal working with the construction industry attorneys at Zinzow Law, LLC. For more information, or to inquire about a free seminar on this or other legal topics, email info@zinzowlaw.com, or visit www.zinzowlaw.com.

Sources:

www.americanbar.org (American Bar Association)

www.nala.org (NALA, The Paralegal Association)

https://theparalegalsociety.wordpress.com

www.allcriminaljusticeschools.com

https://Fremont.edu