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President Joe Biden’s new order mandating large employers to require their workers to be vaccinated against the coronavirus or show a test proving they aren’t infectious will be a test for the agency charged with enforcing it, the Occupational Safety and Health Administration. But it’s an entirely appropriate task for the agency, which I ran from 2009 to 2017. OSHA’s mission is to ensure people in the United States are safe at work, so its most pressing job right now is to try to limit workplace spread of covid-19.
This is a worldwide pandemic, but covid is also an occupational disease, easily transmitted in the workplace. Outbreaks have occurred in a wide range of industries, and workplace exposures have undoubtedly resulted in hundreds of thousands of cases and tens of thousands of deaths.
To be clear, OSHA will not be issuing any sort of vaccination requirement or mandate itself. Infected workers, many of whom are asymptomatic, transmit the virus when they come to work sick. OSHA’s Emergency Temporary Standard (ETS) will tell employers that – just as they are required to eliminate asbestos exposures or provide fall protection for employees working high off the ground – they must also take steps to keep potentially infectious workers out of the workplace, reducing the likelihood that they transmit the virus to their co-workers.
This kind of enforcement is clearly at the core of OSHA’s authority: Under the Occupational Safety and Health Act, employers are required to provide safe workplaces. OSHA issues and enforces rules that employers must follow to control workplace hazards that endanger the safety and health of their workers.
In this case, infectious workers are the hazard.
No employer would be required to vaccinate any employee under the order. Rather, they must ensure that all workers who enter their workplaces are either fully vaccinated (at least 14 days past their final dose of an authorized vaccine) or can show a recent test demonstrating they are not infectious.
Employers would be free to offer non-vaccinated, non-tested workers alternative working arrangements. I suspect many employers would set up testing programs, especially for those workers who choose not to be vaccinated for medical or strongly held religious reasons.
Once the rule goes into effect, employers would have to provide paid time off for workers to receive their vaccinations and, if necessary, to recover from any temporary side-effects of the vaccination. As they are doing now, many unions are likely to negotiate more comprehensive programs, possibly including increased paid leave.
Many employers would be relieved and would embrace this new standard. Some major corporations, such as United Airlines and Disney, already require their employees to be vaccinated. Other employers have been hesitant to mandate vaccinations – but now they can say the federal government is requiring it. And in a time where many businesses can’t find employees, cautious workers would feel more confident returning to work, knowing their workplaces are safer.
OSHA penalties would likely play only a relatively minor role in encouraging employer compliance. When I ran OSHA, I found that most employers move quickly to comply with new rules’ requirements, often even before the rules went into effect. Employers recognize that they will soon have to comply, and it is always better to eliminate a hazard before workers are hurt.
But there would be some OSHA enforcement: Workers would be able to complain to OSHA if employers aren’t complying with the new requirements. OSHA is likely to direct its inspectors to review each employer’s vaccination and testing records each time they start a new inspection in any industry. The Labor Department can also tell the inspectors of the Wage and Hour Division and other enforcement agencies to request that same documentation in their inspections and to contact OSHA if the employer is not compliant.
The size of OSHA’s penalties are based on the circumstances of the case. Currently, the maximum fine for a serious violation is $13,653. Minor infractions, or situations where the employer tried to do the right thing, would likely result in a small or no penalty. But in the most egregious cases – for example, if an employer willfully violates the rule and workers are sickened as a result – OSHA could issue a “willful” violation, which carries a fine 10 times as large ($136,532 per violation).
It is well known that OSHA is a tiny agency able to inspect only a small number of the nation’s employers each year. For that reason, OSHA uses other tools, like news releases, to improve compliance. In one study, each news release identifying a noncomplying employer achieved as much compliance as 210 inspections. OSHA is therefore likely to publicize the names of employers who have not followed the rule, encouraging public-facing firms concerned about reputational damage to comply.
This new requirement to reduce workplace virus transmission is a vital first step, likely to prevent thousands of covid-19 cases among workers and their families. But it needs to go further. I see no justification for limiting the requirements to those employers with 100 or more employees. In the past, OSHA has never exempted small businesses from eliminating life-threatening hazards, and if OSHA takes this road, it may open the rule up to legal challenges, since workers in small companies are no less endangered by the pandemic than workers in larger ones.
In addition, there is compelling epidemiologic evidence that vaccinations alone are not enough to stop spread of the virus. Limiting this rule to restrictions on who can enter a workplace is a missed opportunity to apply additional basic public health precautions that are needed to protect workers and stem the pandemic.
On the second day of his presidency, Biden signed an executive order calling on OSHA to issue an emergency rule to protect all workers from the coronavirus. The rule that OSHA staff proposed to the White House would have required public health precautions, including improved ventilation, indoor masking and case reporting, and it would have covered most of the nation’s workplaces. But as vaccination rates rose and covid cases decreased in the spring, the administration changed course and issued a standard covering only health-care workers, deciding that the nation didn’t need a comprehensive standard.
The rapid rise of the delta variant has changed that previously hopeful picture. It is now clear that both vaccinations and public health precautions are needed to protect workers, stop this pandemic and return the economy – and the country – to normal life.
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