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OSHA’s Vaccine Mandate Enforcement Likely to Count on Insiders

Oct. 13, 2021, 2:11 PM

President Joe Biden has tasked OSHA with creation of a rule requiring every U.S. company with more than 100 employees to require its workers be inoculated against Covid-19, or subjected to weekly testing.

But the Occupational Safety and Health Administration has only 1,850 inspectors responsible for the health and safety of 130 million workers and a mandate that still requires them to inspect workplaces for a panoply of other safety issues, raising the question of just how the agency intends to enforce its new and broad public health mandate.

OSHA has been virtually mum about what enforcement will look like and how it will deploy its limited resources on a massive nationwide mandate. The measure is now under White House review, meaning its release could be imminent.

The “vast majority” of businesses are OSHA compliant, the agency said in response to a Bloomberg Law request for specific details, adding that “when necessary, OSHA has several methods to hold employers accountable for the safety and health of their workers,” including concentrating its resources on repeat offenders.

Management-side attorneys and worker advocates agree that most businesses will comply with the proposed mandate, if they haven’t already begun compelling workers to be vaccinated, and some have. United Airlines, Twitter Inc., Lyft Inc. and others have required workers to get inoculated. Delta Air Lines Inc. is using financial coercion in the form of a $200 monthly health-care surcharge.

However, where there is noncompliance, worker complaints will be the primary driver of enforcement, attorneys and advocates say, pointing to the current Emergency Temporary Standard in effect for health-care workers that shows such complaints are the greatest source of information for inspectors.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

Amanda Flanagan, a safety attorney at Sheehy, Ware, Pappas & Grubbs, P.C. in Houston said she expects a “rash of informants and complaints by employees,” that OSHA will have to investigate.

“OSHA regional offices are stretched thin and there are only so many bodies to go around,” she said, citing the yet-to-be released proposal to the current ETS in effect for health-care workers. “OSHA is going to have to investigate those.”

How OSHA IDs Cases

The proposed mandate won’t survive legal challenge because, “if you look at the grave danger component to establish the ETS and look at the 100-employee threshold that this proposal requires, it looks like OSHA has picked some arbitrary number. What about companies with 98 employees?” said John Ho, a worker safety attorney at Cozen O’Connor in New York.

Texas Gov. Gregg Abbott (R) on Monday issued an executive order barring businesses within the state from requiring inoculation, a measure diametrically opposed to the coming OSHA mandate, setting the stage for a state vs. federal court battle.

However, if and when it is enforced, the agency likely will focus its efforts on those states where vaccine levels are lowest and infection rates are highest.

During the pandemic, the greatest number of Covid-19 related inspections took place in New York and New Jersey, what the safety agency calls Region 1, and in Region 5—Indiana, Michigan, Ohio, Wisconsin, Illinois—areas that experienced mass infections at varying points during the pandemic. There are 10 U.S. regions in total.

David Michaels, who led OSHA under former President Barack Obama, said it also will rely on other federal agencies that regulate businesses, such as Labor’s Wage and Hour Division, to review records as well. Michaels now serves on the White House Covid-19 advisory board.

Wage and Hour and OSHA forged a memorandum of understanding in early August, agreeing to share information to “more efficiently enforce the laws and regulations under their respective authorities.” Under the MOU, for instance, if Wage and Hour discovers information relating to possible violations of OSHA standards or the safety agency’s overarching general duty clause, the division will provide that information to OSHA by making a referral.

Inevitable Opposition

“This is primarily a recordkeeping standard, it will be treated as a recordkeeping standard,” Michaels said by phone of the impending OSHA mandate, susceptible to being bundled with a Wage and Hour review.

Despite the inter-agency cooperation, Ho said, inevitably there will be opposition, forcing OSHA to issue citations and fight it out through the oftentimes protracted administrative law process and then in court.

“I think you’ll see where there is resistance to the mandate, there will be companies that say: ‘Let OSHA cite me and we’ll take it and challenge it in court and by the time I challenge this in court, it will take six months to a year or more until this is over,” Ho said.

Flanagan said she also expects OSHA to enforce the standard when inspecting sites where there have been accidents or fatalities.

“OSHA has a list of industries and practices that they target,” she said, adding that she regularly encounters cases with companies where workers may be injured in a trenching operation, for instance, then face a recordkeeping inspection. For the ETS, “cases like these may well end up on their list. They may well target construction or places where they have large warehouses and factories” where there isn’t a complaint, but an unrelated injury that triggers an inspection of vaccination and testing records.

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergindustry.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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