Small agency, big job: Biden gives OSHA a vaccination mandate

WASHINGTON (AP) – The Occupational Safety and Health Administration is not often mentioned in headlines. Accused of ensuring the safety of workplaces in America, he is usually involved in tasks such as setting and enforcing standards for goggles, helmets, and ladders.

But President Joe Biden this month threw a tiny Labor Department agency into a raging nationwide debate over federal requirements for COVID-19 vaccines. The president instructed OSHA to write a rule requiring employers with at least 100 workers to force employees to get vaccinated or provide weekly test results that prove they are free of viruses.

This assignment is bound to test the understaffed agency struggling to defend its credibility in court. And legal challenges to Biden’s vaccination mandate will be ruthless, with Republican governors and others calling it a flagrant abuse of power. South Carolina Governor Henry McMaster has vowed to fight the mandate “to the gates of hell.”

“The people making this rule have long days and nights,” says labor lawyer Aaron Gelb, a partner in Conn Maciel Carey’s Chicago office. “This is an exciting time to become an OSHA attorney.”

When Congress created OSHA for workplace safety 50 years ago, 38 workers died on the job every day. That number is now approaching 15 – although the American workforce has more than doubled in that time. OSHA draws up regulations designed to protect workers from hazards such as toxic chemicals, wobbly scaffolding and rock falls on construction sites.

“The danger in this case is the infectious worker,” says epidemiologist David Michaels, OSHA director in the Obama administration. “This rule will tell employers: you must take steps to ensure that potentially infectious workers do not enter the workplace.”

OSHA will use its powers under the 1970 law to issue an expedited rule called the “Emergency Temporary Standard,” or ETS, and bypass its own cumbersome rule-making process, which typically takes nearly eight years from start to finish, according to a 2012 study. Accounts Chamber of the Government. To expedite compliance with the rule, OSHA must show that it is in place to protect workers from “serious danger.”

The mandate announced by the White House this month will include 80 million employees – nearly two-thirds of the private sector workforce. Employers who do not comply with the rules can face fines of up to $ 13,600 for violation.

Businesses are eager to learn how OSHA is addressing issues such as which vaccines and tests are acceptable and which are not? How should employers handle employee requests for medical or religious exemptions? Who will pay for testing? Some employers won’t be happy if they have to pay bills for employees who refuse free vaccinations.

Once published, the rule will take effect in the 29 states where OSHA has jurisdiction, according to the law firm Fisher Phillips textbook. Other states, such as California and North Carolina, which have their own federally approved OSH agencies, would have up to 30 days to take similar action. The OSHA rule will be in effect for six months, after which it should be replaced by a permanent measure.

“Any rule will have legal issues,” said attorney Gelb. “OSHA intends to truly devote time and effort to developing a regulation that will withstand these legal challenges.” He predicts that the rule will not be published in the Federal Register until November.

The agency is often stretched out as it is. Even with what OSHA calls its “partners” in government health and safety agencies, only 1,850 inspectors monitor 130 million workers at 8 million jobs. “Understaffing an agency as important as this is useless, especially because of moments like this,” says Celine McNicholas, director of government relations at the Left-wing Institute for Economic Policy.

Until June, when OSHA issued the COVID-specific ETS covering the healthcare industry, OSHA had not implemented an emergency rule since 1983. Overall, it issued 10. But the courts overturned four and partially blocked the fifth, according to a Congressional study. Service.

Michaels, now a professor of public health at George Washington University, says the “grave danger” is clear to a country battling a pandemic that has killed more than 650,000 Americans. “The OSHA plan is very clear about these requirements,” he says. “And I am not worried that the court will say that it is not.”

Many employers can welcome this mandate. They wanted to demand the vaccine, but were afraid to alienate their workers who were resisting the pressure to vaccinate. “In my opinion, most employers should welcome this with relief,” says McNicholas, a former special adviser to the National Labor Relations Board. “It gives them a clear plan for what they need to do.”

On the other hand, at a time when companies are posting vacancies faster than job seekers can fill them, some large employers fear the loss of vaccine-resistant employees in favor of smaller enterprises that are not covered by the mandate. “It can really help those small businesses that are struggling to attract employees,” says Nicholas Hals, a Fisher Phillips labor lawyer based in Charlotte, North Carolina.

Khals says the mandate “will be difficult to fulfill.” OSHA is likely to rely less on its own inspectors to spot irregularities and more on complaints from insiders – workers who are “frustrated either that the employer is not doing it, or colleagues who are not complying with the mandate,” he said. …

Former OSHA chief Michaels calls Biden’s mandate “a very good first step. But we need more.” He wants the rules to apply to smaller employers. “Until we stop this by losing hundreds of people every day to this disease, we will never get back to normal,” he says.

More than 175 million Americans are fully vaccinated. But 80 million of those eligible to be vaccinated have yet to receive their first vaccine, according to the White House.

The Biden administration is also requiring federal workers and contractors and 17 million healthcare workers to be vaccinated. Goldman Sachs estimates that these initiatives, as well as a vaccination or testing mandate for major employers, should add 12 million people by March 2022.

“Most employers voluntarily adhere to the standards because that’s what they do with all OSHA regulations,” says Michaels. “In particular, large employers have (personnel) teams, they have attorneys who tell them, ‘This is what the law says, and this is what we have to do’ … I think most employers will do right. the thing is here, and we will see a very high level of compliance pretty quickly. “

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