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Punching In: Biden’s Shot Mandate Plunges OSHA Into Culture Wars

Sept. 20, 2021, 10:14 AM

Monday morning musings for workplace watchers

OSHA’s National Spotlight | Saying ‘No’ to the Vaccine

Ben Penn: President Joe Biden has thrust the Occupational Safety and Health Administration into the middle of America’s culture wars, for better or for worse.

The surging delta variant and a deep vein of anti-vaccination sentiment across the country prompted Biden to give the Labor Department’s arcane workplace safety arm what may be the most politically challenging mission in its 50-year history.

The White House’s directive for OSHA to issue an emergency regulation within weeks to require businesses with 100 or more workers to mandate employee vaccinations or weekly testing appears destined to leave a lasting impression on how major segments of the population perceive the agency and its mission to keep workers safe on the job.

That raises the question: What will OSHA’s public reputation be like on the other side of this rulemaking and the inevitable legal challenges?

A handful of former OSHA officials said in interviews that they couldn’t recall a moment in which OSHA was handed such a high-profile, politically volatile task.

“This is probably the largest, most controversial rule that OSHA, and maybe the entire Labor Department, will ever adopt,” former Labor Secretary Eugene Scalia said during a Sept. 13 appearance on Fox News.

Former Labor Secretary Eugene Scalia speaks at a White House meeting during his tenure.
Photographer: Stefani Reynolds/CNP/Bloomberg

OSHA is no stranger to controversy. It has a record of drawing businesses’ ire in its usual course of enforcing safety protocols and probing construction accidents, particularly during Democratic administrations. But the national spotlight it now faces is of a wholly different variety.

Opponents see health mandates of any sort as an affront to personal liberty and an overreach by Uncle Sam. As the pandemic has shown, the battles over mask rules and over the necessity of vaccination has tapped into the toxic political climate and online disinformation circus that has bedeviled the U.S. in recent years.

All OSHA regulators can do is keep their heads down and implement the president’s policy edict. Yet when the rule is released and enforced, the agency’s work will be subject to public opinion like never before.

Some employers fear a mandate could compound the problem of finding enough workers to fill openings. On the flip side, some say the administration will be giving corporations the political cover they’ve been seeking to force employees to get the shot.

“Businesses want to open,” Labor Secretary Marty Walsh said in a spot on CNBC that aired last week. He said he briefed business leaders about the mandate and “most of them welcomed what I had to say.”

One former senior OSHA official said many employers will feel an incentive to comply with the rule before it is released, but predicted the agency may not be equipped to handle enforcement demands if there’s widespread opposition.

The former official, who requested anonymity to speak candidly, said this rulemaking is “so unique” for OSHA because “there’s so much resistance” to mandates. “This has got all this political stuff, all this misinformation,” the ex-staffer said.

Fatima Hussein: Construction and manufacturing are two sectors where compliance with the coming OSHA vaccination rule could be a big challenge for many companies.

Seven management lawyers said they’re receiving inquiries from business leaders in those industries, and some are saying workers are threatening to quit over the vaccine mandate.

Karen Elliott, an employment lawyer at Eckert Seamans Cherin & Mellott LLC, said construction firms she represents are having a hard time encouraging workers to get vaccinated.

“Some have been giving out lots of money and their workers’ response is, ‘I don’t care how much you pay me, I’m not getting vaccinated,’” she said. “So clients are already having to scramble with redeploying their workforce or terminating individuals because they don’t have work for them based on their vaccination status.”

A worker takes part in a roadway construction project in San Francisco in March.
Photographer: David Paul Morris/Bloomberg via Getty Images

An analysis of survey data conducted by the Center for Construction Research and Training showed that by the end of August, workers in construction had a vaccination rate of 57%, far below the combined tally of 81% for all other occupations. The survey was distributed via Facebook through a partnership with the Delphi Group at Carnegie Mellon University.

Representatives for North America’s Building Trades Unions, when asked to provide an assessment of the vaccination rate among membership, pointed to an analysis from the same sources that pegged the vaccination rate in the construction and extraction fields at 51% as of late June.

“We support policies that will increase vaccination rates in North America,” NABTU President Sean McGarvey said in a statement. “As we do our part to lower the rate of infection in our communities amid the Delta variant surge, we urge everyone who is eligible and able to get vaccinated.”

Vaccine hesitancy in construction and other sectors is “going to require a delicate balance for OSHA to walk, since the mandate is on the employer, but to do that employers need a lot of buy-in from their workers,” said Matthew Johnson, an assistant professor at Duke University’s Sanford School of Public Policy.

If a large percentage of a company’s workers refuse to get the shot, Johnson said, OSHA will have to “take into account whether an employer is making a good-faith effort to comply, or whether the employer is willfully neglecting the new rules.”

“Clearly, the question will be: How does OSHA know whether the company is making a good-faith effort, and what will determine whether fines are levied or not?”

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We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Fatima Hussein in Washington at fhussein@bloombergindustry.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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