WASHINGTON (AP) – The Occupational Safety and Health Administration does not make many titles. Tasked with keeping workplaces safe in America, he usually deals with tasks such as setting and enforcing standards for glasses, helmets, and ladders.
But President Joe Biden this month launched the small agency of the Department of Labor in the furious national debate over federal mandates for the COVID-19 vaccine. The president has ordered OSHA to write a rule requiring employers with at least 100 employees to force employees to get vaccinated or produce weekly test results that prove they are virus-free.
The assignment is sure to test an understaffed agency that has struggled to defend its authority in court. And the legal challenges to Biden’s vaccine mandate will be inexorable – Republican governors and others are calling it a glaring example of government exaggeration. South Carolina Governor Henry McMaster has promised to fight the mandate “to the gates of hell”.
“There will be long days and nights for the people who are drafting this rule,” says labor attorney Aaron Gelb, a partner in Conn Maciel Carey’s Chicago office. “It’s definitely an interesting time to be an OSHA attorney.”
When Congress created OSHA 50 years ago to oversee occupational safety, 38 workers were dying every day on the job. Now that figure is closer to 15, although the American workforce has more than doubled in the meantime. OSHA writes rules designed to protect workers from hazards such as toxic chemicals, rickety scaffolding, and collapsing construction sites.
“The danger in this case is the infectious worker,” says epidemiologist David Michaels, director of OSHA in the Obama administration. “This rule will tell employers: you need to take steps to make sure potentially infected workers don’t enter the workplace.”
According to a 2012 study by the government accountability office. To speed up the rule, OSHA must demonstrate that it is taking action to protect workers from “grave danger”.
The mandate announced by the White House this month will cover 80 million employees, nearly two-thirds of the private sector workforce. Employers who fail to comply could face fines of up to $ 13,600 per violation.
Companies are eager to see how OSHA handles questions such as: which vaccines and tests are acceptable and which are not? How should employers handle requests from employees seeking medical or religious exemptions? Who will pay for the tests? Some employers won’t be happy if they have to foot the bill for employees who refuse free vaccinations.
Once out, the rule would go into effect in 29 states where OSHA has jurisdiction, according to a primer from the law firm Fisher Phillips. Other states like California and North Carolina that have their own federally approved occupational safety agencies would have up to 30 days to take equivalent measures. The OSHA rule would last six months, after which it must be replaced by a permanent measure.
“There will be legal challenges against any rule,” attorney Gelb said. “OSHA will really put the time and effort into drafting a rule that will survive those legal challenges.” He anticipates that the rule will not be published in the federal register until November.
The agency is already often tense. Even including what OSHA calls its “partners” at state occupational safety agencies, there are only 1,850 inspectors overseeing 130 million workers in 8 million jobs. “It’s not helpful to have a critical agency like this understaffed, especially due to times like this,” says Celine McNicholas, director of government affairs at the left-wing Economic Policy Institute.
Until June, when it issued a COVID-related ETS covering the healthcare sector, OSHA hadn’t implemented an emergency rule since 1983. Overall, it issued 10. But the courts overturned four and partially blocked a fifth. , according to the Congressional Research Service.
Michaels, now a professor of public health at George Washington University, says the “grave danger” is evident in a country fighting a pandemic that has killed more than 650,000 Americans. “The OSHA plan very clearly meets these requirements,” he says. “And I’m not worried that a court will say otherwise.”
Many employers can welcome the mandate. They wanted to request vaccines but were afraid of alienating their workers who resist being forced to be vaccinated. “Most employers, in my view, should welcome him with relief,” says McNicholas, a former special adviser to the National Labor Relations Board. “This gives them a roadmap of exactly what they need to do.”
Additionally, at a time when companies are posting job vacancies faster than applicants can fill them, some large employers fear losing vaccine-resistant employees to small businesses that aren’t covered by the mandate. “It could actually help these small businesses that are struggling to attract employees,” says Nicholas Hulse, a Fisher Phillips employment attorney based in Charlotte, North Carolina.
Hulse says the mandate “will be difficult to enforce”. OSHA, he says, will likely rely less on its own inspectors discovering violations and more on complaints from insiders – workers who grow up “frustrated or with the employer for not implementing it or with colleagues not following the mandate”.
Former OSHA chief Michaels calls Biden’s tenure “a great first step. But we need more ». He wants to see the rules extended to smaller employers. “Until we stop it, losing hundreds of people every day to this disease, we will never go back to any kind of normalcy,” he says.
More than 175 million Americans are fully vaccinated. But 80 million of those eligible for inoculation have not yet received the first hit, the White House says.
The Biden administration also requires vaccinations for federal workers and contractors and for 17 million healthcare workers. Such initiatives, in addition to the vaccination or testing mandate for large employers, are expected to add 12 million to the vaccine ranks by March 2022, according to Goldman Sachs estimates.
“Most employers will voluntarily meet the standards because that’s what they do with all OSHA rules,” says Michaels. “The big employers in particular, they have teams (human resources), they have lawyers who tell them, ‘This is what the law says and this is what we need to do’ … I think most employers will do the right thing here, and we will see very high levels of compliance very quickly. “
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