President Joe Biden recently announced that he has directed the Occupational Health and Safety Administration (OSHA) to draft a rule requiring that businesses with more than 100 employees compel their workers to receive a COVID-19 vaccine or force them to submit to weekly COVID-19 testing, but reports now indicate that not only employers, but OSHA itself, may have issues implementing Biden’s plan.
“[B]efore the first legal challenges against the mandate roll in, the Biden administration faces the more immediate conundrum of whether the chronically resource-strapped Occupational Safety and Health Administration (OSHA) is up to the task of enforcing it,” Business Insider noted Tuesday.
“It’s reeling from deep staffing cuts under the Trump administration, and its fines are relatively low and often fought out in long court battles,” experts told the outlet.
The Trump cuts left just “1,798 total OSHA inspectors, federal and state, coming out to one inspector per 82,881 workers and just $3.97 budgeted per covered worker,” according to Business Insider. According to a similar report from Reuters, “OSHA now has an estimated 800 safety and compliance inspectors to cover the more than 100,000 private-sector companies affected by the new rule.”
“OSHA is rather toothless, in a lot of ways, in the fines that it can implement,” the expert noted. “They’re very low in proportion to the harm that is often caused, but employers will fight these fines and appeal them through every avenue possible, spending two, three, four, ten times as much money on legal proceedings then they would actually just paying the fine.”
“With more than 80 million workers covered, ‘OSHA won’t be able to police every employer,’” one labor attorney told Reuters.
Then there are the legal issues. “OSHA plans to publish an Emergency Temporary Standard (ETS) to enact the new requirements, the White House said Friday,” per Reuters. “That measure, which is used to accelerate urgent rules, has only been used 10 times in OSHA’s 50-year history. Courts have invalidated or halted four of those rules and partially blocked one, according to the Congressional Research Service.”
Even if the rule survives legal challenges and, subsequently, OSHA’s own administrative challenges, employers, who might have applauded a Biden administration effort to mandate vaccines, are reportedly balking at the cost of weekly COVID-19 testing — an option they must provide to workers who refuse to receive a COVID-19 vaccine.
“It’s millions of dollars a year to any size company,” another labor attorney told Politico. “I’ve seen companies do it before Biden issued his order and it’s incredibly burdensome and time-consuming and may not even guarantee health and safety in the way that mandating vaccines would.”
The emergency temporary standard will require companies with more than 100 workers to verify that their workforce is vaccinated or get tested weekly for Covid-19. Employers who break the rules could face fines of $14,000 per violation, according to the White House.
But there are many questions about what the scope of the rule will be. For instance, does the 100-employee threshold apply to one worksite or an entire company? Does the company have to pay for testing or does the employee?
Implementing a rapid testing program like the one envisioned under Biden’s plan is logistically difficult and costly, said Ian Schaefer, chair of Loeb and Loeb’s employment and labor practice in New York.
“It’s millions of dollars a year to any size company. I’ve seen companies do it before Biden issued his order and it’s incredibly burdensome and time-consuming and may not even guarantee health and safety in the way that mandating vaccines would,” Schaefer said.
“The administration is incredibly difficult, and it’s imperfect, with respect to making sure that the testing is timely, that people who are testing actually don’t have COVID,” the attorney continued.
“What we have right now is chaos,” another attorney noted, “because of the unintended consequences of making such an announcement where there is no clarity with respect to a gargantuan number of questions that have been left open.”
Biden is forging ahead with his plan to mandate vaccines, regardless. The OSHA rule is expected sometime in mid-September.
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