November 4, 2021

The Biden administration is launching its biggest push yet to vaccinate Americans.

On Thursday, the U.S. Department of Labor announced aggressive action to enforce mandatory vaccines for the two-thirds of working Americans who are not federal employees or contractors. The action will force employers with more than 100 employees that have not imposed mandates on their own to do so. The rule says workers who refuse to get vaccinated must undergo weekly testing and wear masks on the job. (Read the full order here.)

The rule says companies must pay workers for the time it takes to get vaccinated and must provide sick leave for workers to recover from vaccine side effects.

Unvaccinated employees must also wear masks when they are around other workers or customers, including when they are riding in a vehicle with others for the purpose of their work. Employers are not required to pay for the masks.

The rule does not require employers to pay for weekly testing for unvaccinated employees. That, alone, may be the leverage that will force workers to get the shot. Labor unions may point to existing agreements that will require companies to pay for safety requirements.

Expect a wave of lawsuits from Republicans and small business advocacy groups. The White House announcement says the new Occupational Safety and Health Administration rule will “preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.”

The White House said OSHA clearly has the authority to enforce mandatory vaccinations just as it requires other workplace safety rules, such as requiring goggles or hardhats. A senior administration official told Fox Business News, “The new emergency temporary standard is well within OSHA’s authority under the law and consistent with OSHA’s requirements to protect workers from health and safety hazards, including infectious diseases.”

Companies that fail to comply with the order to have workers fully vaccinated by Jan. 4 could face fines in the range of $14,000, and that figure could go higher for companies that willfully violate the order.

The new order says employers will have the burden of determining the vaccine status of all employees, meaning they will have to see proof of vaccination and maintain vaccine records. Employers must “Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.”

The administration also unveiled President Joe Biden’s requirement that the country’s 17 million health care workers, including people who are employed in nursing homes, also be fully vaccinated by Jan. 4. The government can impose the requirement on health care facilities that receive Medicare or Medicaid funding, which is virtually every hospital and nursing home. The rule requiring health care workers to be vaccinated does not include an option to undergo testing to avoid the vaccination.

Private sector employees and health care workers now join federal employees and contractors under the federal mandate. The Biden administration said it would move the deadline for contractors to be vaccinated to Jan. 4. The deadline was previously Dec. 8.

Retailers pressed the Biden administration to delay the deadline until after Christmas. The National Retail Federation said requiring vaccines would make it even harder to hire and retain seasonal workers, especially in parts of the country where vaccination rates are low. But mandates have proven to be an effective way to push vaccination rates higher.

In the last week, New York City, for example, has seen a rapid increase in vaccinations for city workers as a deadline approached there this week. Big employers that imposed mandates on workers, including Tyson Foods and the Houston Methodist hospital system, now report 96% of their workers are vaccinated. Other companies that have imposed vaccine mandates include Facebook, Delta Air Lines, Citigroup, Amtrak, Ford, DoorDash, Google, General Electric, McDonald’s, Lyft, NBC, The New York Times, The Washington Post, Disney, Walmart, Netflix, Uber, Viacom CBS and  Gray Television.

Fox News hosts have been openly critical of the president’s vaccine mandates while Fox, itself, has a policy that is virtually the same as the one the president ordered for private employers: Either get vaccinated or be regularly tested.

The legal authority

Carolina Sanchez, left, is comforted by her oldest son, Saul Jr., during a protest staged by the union representing employees at a Colorado meatpacking plant where six workers died of COVID-19 and hundreds more were infected, outside the offices of the Occupational Safety and Health Administration Wednesday, Sept. 16, 2020, in downtown Denver. (AP Photo/David Zalubowski)

President Joe Biden turned the enforcement for the rule over to the Occupation and Health Safety Administration, which regulates workplace safety nationwide. The administration points to workplaces — including meatpacking plants, where 59,000 workers were infected with COVID-19 and 269 died — as clear examples of how COVID-19 is a workplace safety issue.

One of the battles against this mandate will no doubt be rooted in whether OSHA has the authority to issue such a mandate. The order issued Thursday speaks to that, and I will quote it here so you don’t have to look it up. The OSHA order says, in effect, that where there is a potential “grave danger” to employees, the government has the obligation and authority to protect them, and that Congress has granted OSHA virtually unlimited discretion to keep workers safe:

The purpose of the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 651 et seq., is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651(b). To this end, Congress authorized the Secretary of Labor (Secretary) to promulgate and enforce occupational safety and health standards under sections 6(b) and (c) of the OSH Act.1 29 U.S.C. 655(b). These provisions provide bases for issuing occupational safety and health standards under the Act. Once OSHA has established as a threshold matter that a health standard is necessary under section 6(b) or (c)—i.e., to reduce a significant risk of material health impairment, or a grave danger to employee health—the Act gives the Secretary “almost unlimited discretion to devise means to achieve the congressionally mandated goal” of protecting employee health, subject to the constraints of feasibility. See United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1230 (D.C. Cir. 1981)

A standard’s individual requirements need only be “reasonably related” to the purpose of ensuring a safe and healthful working environment. Id. at 1237, 1241; see also Forging Indus.

Ass’n v. Sec’y of Labor, 773 F.2d 1436, 1447 (4th Cir. 1985). OSHA’s authority to regulate employers is hedged by constitutional considerations and, pursuant to section 4(b)(1) of the OSH Act, the regulations and enforcement policies of other federal agencies. See, e.g., Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 241 (2002).

The OSH Act in section 6(c)(1) states that the Secretary “shall” issue an emergency temporary standard (ETS) upon a finding that the ETS is necessary to address a grave danger to workers. See 29 U.S.C. 655(c). In particular, the Secretary shall provide, without regard to the requirements of chapter 5, title 5, United States Code, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if the Secretary makes two determinations: That employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and that such emergency standard is necessary to protect employees from such danger. 29 U.S.C. 655(c)(1).

The reality is that OSHA likely does not have enough inspectors to vigorously inspect and enforce this rule. NPR points out that OSHA will have to rely on worker complaints to find noncompliant companies:

Employee complaints are an important part of enforcement given how few inspectors the government has, says Rich Fairfax, a safety consultant with the National Safety Council who spent 36 years at OSHA, including as head of enforcement.

According to OSHA, there are about 1,850 federal and state inspectors covering some 8 million worksites nationwide.

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Al Tompkins is one of America's most requested broadcast journalism and multimedia teachers and coaches. After nearly 30 years working as a reporter, photojournalist, producer,…
Al Tompkins

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