President Joe Biden says his extensive Covid-19 vaccination and test mandate will boost the economy and save lives, but as companies prepare for the new requirement, they are wondering not only what will be in the regulation, but how it will enforced.
The mandate, which will apply to organizations with at least 100 employees and cover an estimated 80 million workers, has already drawn litigation from two dozen Republican attorneys general and made some people promise to quit their jobs. But a bigger challenge for the administration could lie within the agency, which had the task of ensuring compliance.
The Occupational Safety and Health Administration was already embarking on a broad mission ahead of the new rule, which it is expected to issue in a few weeks. In order to stretch its resources, the Agency typically prioritises high-risk industries and targets repeat offenders, and it offers assistance, in addition to issuing fines, to companies that are inconsistent.
But OSHA only had about 862 inspectors at the beginning of 2020, according to a response to the agency’s Freedom of Information Act obtained by NBC News, to carry out all its statutory enforcement tasks – and that number has fallen over the past several years. This year, despite new hires, the agency lost another 65 inspectors, according to data obtained from OSHA.
Experts say that the small size of the agency in relation to its responsibilities means that it can not enforce the rule by submitting a large number of inspectors. While OSHA is now hiring, training is taking time. David Michaels, who ran OSHA for seven years, said he did not “think the new inspectors will be out in the field any time soon.”
OSHA’s legacy as a strained agency means there will not be an “army of inspectors knocking on doors,” said former OSHA senior policy adviser Debbie Berkowitz.
“It would take 160 years for OSHA to enter each workplace just once,” she estimated. “It’s an understaffed, under-resource agency to begin with.”
Michaels, who is familiar with the internal considerations of the rule, expects most companies to comply without government intervention. “It is not a vaccination mandate” specifically, he noted, but rather a demand to take measures to keep the workplace safe from the danger of infectious workers.
OSHA “will tell employers that they need to make sure that potentially infectious workers do not enter the workplace, and they can do so in a variety of ways,” Michaels said. It includes regular testing and close tracking of companies’ compliance with companies or even requirements from home, he said.
“In the last week, I have spoken to hundreds of business leaders, and the question they are asking me is not how OSHA enforces this. The question is, what do I need to do to comply? Said Michaels.
Naming and shame
If companies do not comply with the regulation, OSHA will “have many handles,” Michaels said. “They can impose heavy fines, make it clear to workers that they can complain if their employer does not comply, and they can conduct on-site inspections.”
If a company makes a good faith effort, Berkowitz said she expects OSHA will not force the issue of a fine.
But a key aspect of enforcing this requirement that sets it apart from some other OSHA rules will be the reaction of employees who risk catching Covid in the workplace, which will act as a power multiplier, experts say.
“The vast majority of employees want everyone to be vaccinated,” said Lawrence Gostin, a professor of public health at Johns Hopkins University. “Only a small but loud minority do not. What you need to do is catch the attention of the silent majority and make them whistle for any employer. ”
“Encouraging whistleblowing is an extraordinarily important part of it,” he said, adding that OSHA “does not need to set foot in the hands of most employers.”
For the minority of companies that do not comply with this, OSHA can publish the consequences.
“They send inspectors out and they may find jobs where they have not done so,” Gostin said, referring to compliance with the requirement for vaccination and testing. “And they will issue large fines, and they may issue press releases, which will put some employers to shame,” while sending a message to others.
The forthcoming rule is also different from others in that it is “so politically polarized,” said Matthew Johnson, a labor economist at Duke University’s Sanford School of Public Policy. “It’s quite likely that many companies will comply with them without having to do anything.”
Johnson said his research shows that the negative publicity companies receive when OSHA publishes that they do not comply with health and safety regulations is “pretty effective.”
However, in parts of the country where covid-related restrictions are unpopular, the vaccination rule can be met with opposition from officials, businesses and the public, he said. More than 20 states have workplace safety agencies that cover both the public and private sectors, and some of these agencies occasionally abstain from federal regulations, Berkowitz noted.
In addition, it can be problematic to rely on whistleblowers in these areas. Many workers do not know how to file OSHA complaints and could fear retaliation for doing so, Johnson said. This dynamic makes it likely that the agency will prioritize industries with low vaccination rates, such as meat packaging or construction, and possibly certain regions, he said.
Once OSHA has released the draft rule, a short public comment period is likely to follow, allowing companies to express their skepticism and propose changes, Michaels said.
One problem for companies may be the cost of weekly testing and record keeping for workers who refuse to be vaccinated, which Gostin said could cause companies to simply impose vaccinations as “standard”.
Lex Taylor, who runs a group of companies based in Louisville, Mississippi that makes heavy industrial equipment such as forklifts and generators, called the new rule “a tough one” and said it was unclear how often he would have to test them from its 1,300 workers who refuse vaccination. Even after offering an extra day off to get vaccinated, only 30 percent of his workforce has gotten the shot so far, he said.
Given labor shortages, Taylor said he is unable to impose vaccination and risk losing employees. “It’s just impossible,” he said, emphasizing the gap in his workforce that would create given the number of his workers still unvaccinated. “Logic dictates that it is irresponsible. It is brittle.”
This means that he will have to draw up a test protocol. But the limited supply of home Covid tests can make it difficult to buy them in bulk and cheaply, he said, adding: “If we have to have a negative test result before the employee can show up for work, it will really be an administrative nightmare. . ”
In response to the shortage, the White House has promised to increase procurement of the tests for distribution to the public.
Scott Waller, chairman of the Mississippi Economic Council, said his organization has promoted vaccinations, but member companies are confused about how to prepare for the spread of vaccine rules.
“The idea sounds great, but what are some of the unintended consequences?” Asked Waller.
For example, the rule is likely to apply even to chains with a total of 100 employees in their various stores, according to Michaels.
“It makes it a lot harder,” Waller said, noting that it would be more challenging for management to keep track of compliance in more places.
Although companies largely support employee vaccination, they are concerned that a requirement may cause employees to quit at a time when many companies are facing shortage of workers, Waller said. In Michigan, the Henry Ford Health System announced Tuesday that 400 employees had quit the system’s vaccination mandate. Yet it is only about 1 percent of the health care workforce.
The White House push
The White House says the evidence supports the effectiveness of mandates. It published a report Thursday, claiming that vaccination requirements in many organizations have helped push their employees’ vaccination rates to more than 90 percent — a “significantly higher” rate than the 63 percent of the working-age population who are fully vaccinated .
Biden asked companies not to wait for the requirement to take effect.
“My message is that your employees need to be vaccinated,” he said in comments Thursday. “With vaccinations, we are finally going to beat this pandemic. Without them, we will face endless months of chaos in our hospitals, damage to our finances and anxiety in our schools and empty restaurants and much less trade.”
Although as many as half of the unvaccinated workers in opinion polls have said they would leave their jobs rather than be forced to be vaccinated, anecdotal evidence suggests that the number who quit may be much smaller.
Meanwhile, OSHA got a boost in the Covid relief proposal, which Biden signed in March, which set aside $ 100 million for inspectors, a whistleblower program and health and safety grants, according to the Department of Labor – all elements of the agency’s enforcement efforts.
“OSHA should emphasize that it will strictly enforce the law, that it will devote large resources to inspections and enforcement, and that it will become public knowledge that employees must whistle for employers who do not follow OSHA standards,” Gostin said.
“This combination will have a strong impact,” he said.