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Punching In: OSHA Rejects Industry Push for Vaccine Rule Input

Sept. 27, 2021, 10:14 AM

Monday morning musings for workplace watchers

OSHA’s Under the Gun | Thea Lee Talks USMCA

Ben Penn: The Occupational Safety and Health Administration is now in radio-silence mode as it works to crank out President Joe Biden‘s employer vaccine mandate, and business representatives feel like they’re in a black box.

U.S. Labor Department officials held outreach calls with business and labor groups after Biden announced the plan Sept. 9, but warned there would be no further sessions and no solicitation of public comments.

Since then, requests from unions and businesses for virtual meetings to share concerns and best practices have all been denied, according to interviews with eight sources.

The agency is under the gun to publish an emergency rule ASAP to meet Biden’s call for companies with at least 100 employees to ensure their workers are fully vaccinated or tested weekly. Stakeholder meetings would risk delaying Biden’s goal.

Yet when industry lobbyists are told they won’t be able to weigh in on one of the most significant and controversial regulatory interventions in recent memory, one would be naive to assume that’s the end of it.

Business groups are deluging the department with letters, and some are warning that OSHA risks compliance problems by not accepting additional employer input.

“This ETS is expected to be the most far-reaching standard ever issued by OSHA, and public input will be critical,” a coalition of business groups, led by the U.S. Chamber of Commerce, National Association of Manufacturers, and National Retail Federation, said in a letter to OHSA Friday.

Separately, NRF joined with the Retail Industry Leaders Association to ask OSHA for a 90-day compliance window.

The International Franchise Association, which bills itself as the only trade group representing franchise brands in fast-food, hospitality, and other sectors, wrote to the administration earlier this month.

“Because we’re so unique, that’s why I’m so nervous,” said Suzanne Beall, the group’s vice president of government relations. “All I can do right now is hope that there’s interagency conversations with the experts that understand franchising.”

OSHA hasn’t indicated whether they’re considering letters from business groups, and DOL media representatives didn’t comment when asked. But there’s reason to believe such letters can influence the rulemaking, at least on the margins.

President Joe Biden gestures as he delivers remarks on his administration’s Covid-19 response and vaccination program at the White House on Sept. 24.
Photographer: Anna Moneymaker/Getty Images

Several former department officials who were involved in OSHA’s regulatory process said there would be nothing wrong with the agency considering the written materials as it frames the rule—provided OSHA reviews everything that comes its way, without giving undue influence.

Businesses—particularly large firms that already mandate vaccinations or provide on-site testing—argue they could share valuable lessons to ease the burden of issuing a complex rule.

Industry powers frustrated over their lack of influence have one last recourse: OSHA must send the standard to the White House regulatory gatekeeper for final review. At that stage, administration officials often meet with outside groups, giving them a final chance to plead their case. That could lead to last-minute edits.

The expectation around town, however, is that the pressure to rapidly increase the nation’s vaccination rate through this mandate will compel the White House to expedite review, without any stakeholder meetings.

Ian Kullgren: The DOL’s new deputy undersecretary for international affairs has a message for American workers: Mexico is not the enemy.

In a sit-down interview with Bloomberg Law last week, Thea Lee discussed how the agency’s Bureau of International Labor Affairs is helping the Mexican government implement historic labor reforms under the U.S.-Mexico-Canada Agreement by 2023.

The North American trade deal’s labor provisions are one area where the Biden administration isn’t too far apart from its predecessor. In broad terms, both believe that strict labor clauses in trade deals are key to preventing U.S. workers from being undermined by cheap foreign labor.

But while former President Donald Trump vilified Mexico—“Our jobs are fleeing the country. They’re going to Mexico. They’re going to many other countries,” he said at a 2016 debate—Lee said it’s an issue of corporate greed.

“I never see this as, ‘American and Mexican workers are fighting with each other,’” said Lee, a labor economist and former AFL-CIO official. “That’s how people like to put it. Like, ‘Oh, Mexican workers are stealing our jobs’ … [but] Mexican workers are also being abused, American workers are being abused, and companies are making a ton of money by pitting us against each other.”

Opponents of NAFTA attend a news conference at the U.S. Capitol in June 2019, before the U.S.-Mexico-Canada Agreement was approved by Congress.
Photographer: Andrew Harrer/Bloomberg via Getty Images

That point of view was reflected in the first two labor-related USMCA “rapid-response” actions, a means of addressing alleged violations of the pact. Both were filed against U.S. companies.

In each instance, U.S. officials alleged that General Motors Co. and a subsidiary of Cardone Industries, a Philadelphia-based auto company, had trampled Mexican workers’ rights and violated USMCA in the process.

To avoid further penalties, the companies each entered into remediation agreements with the U.S. trade representative this summer that included severance for workers at Tridonex, the Cardone subsidiary, and an employee vote on a union contract at a GM plant in Silao, Mexico.

Workers at the GM plant rejected their existing contract in a vote last month, and on Tuesday U.S. Trade Representative Katherine Tai lifted sanctions on the facility.

Lee also discussed a new program to station labor attachés in U.S. embassies abroad. There are three based in Mexico, and Lee said her bureau may hire two more by the end of the year. The agency then plans to create posts in Central America, Vietnam, and maybe Bangladesh, she said.

“We have people on the ground whose 1 million percent focus is labor rights,” Lee said. “They have relationships, they’re out talking.”

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Ian Kullgren in Washington at ikullgren@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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