As Biden Vaccination or Test Mandate Approaches, App Questions Rise

President Joe Biden says his broad mandate to vaccinate and test Covid-19 will boost the economy and save lives, but as businesses brace for the new requirement, they are not only wondering what the regulations will contain, but how it will be applied.

The mandate, which will apply to organizations with at least 100 employees and cover around 80 million workers, has already sparked threats of prosecution from two dozen Republican attorneys general and has prompted some people to swear to quit their jobs. use. But a bigger challenge for the administration might lie within the agency responsible for ensuring compliance.

The Occupational Safety and Health Administration was already managing a large mission before the new rule, which it is expected to publish in a few weeks. To stretch its resources, the agency typically prioritizes high-risk industries and targets repeat offenders, and offers help, in addition to issuing fines, to non-compliant businesses.

But OSHA only had about 862 inspectors at the start of 2020, according to a response to the agency’s Freedom of Information Act obtained by NBC News, to carry out all of its enforcement duties – and this number has tended to decline in recent years. This year, despite new hires, the agency lost 65 more inspectors, according to data obtained from OSHA.

Experts say the agency’s small size compared to its responsibilities means it cannot enforce the rule by deploying large numbers of inspectors. While OSHA is recruiting now, training takes time. David Michaels, who led OSHA for seven years, said he “doesn’t think these new inspectors will be on the ground anytime soon.”

OSHA’s legacy as a tense agency means there will be no “army of inspectors knocking on doors,” said former OSHA senior policy adviser Debbie Berkowitz.

“It would take 160 years for OSHA to enter every workplace once,” she said. “It’s an understaffed and underfunded agency to start with.”

Michaels, who is familiar with internal rule deliberations, expects most companies to comply without government intervention. “This is not a vaccine mandate” in particular, he noted, but rather a requirement to take measures to protect the workplace from the risks of infectious workers.

OSHA “is going to tell employers that they need to make sure potentially infectious workers don’t enter the workplace, and there are a number of ways they can do that,” Michaels said. This includes regular testing and close monitoring of worker compliance by companies, or even work-from-home requirements, he said.

“Over the past week, I have spoken with hundreds of business leaders, and the question they ask me is not how OSHA will enforce this. The question is: what should I do to comply? Michaels said.

Name and shame

If companies don’t follow the regulations, OSHA will have “a lot of leverage,” Michaels said. “They can impose hefty fines, let workers know they can complain if their employer doesn’t comply, and they can do spot inspections. “

If a company makes a good faith effort, Berkowitz said it expects OSHA not to force the issue with a fine.

But a key aspect of enforcing this requirement, differentiating it from some other OSHA regulations, will be the reaction of employees at risk of catching Covid in the workplace, which will serve as a force multiplier, experts say.

“The vast majority of employees want everyone to be vaccinated,” said Lawrence Gostin, professor of public health at Johns Hopkins University. “It’s only a small vocal minority that doesn’t. What you need to do is grab the attention of the silent majority and ask them to denounce any employer. “

“Encouraging whistleblowing is an extremely important part of it,” he said, adding that OSHA “doesn’t have to set foot in most employers.”

For the minority of companies that do not comply, OSHA could publicize the consequences.

“They will send inspectors and they might find workplaces where they haven’t,” Gostin said, referring to meeting vaccination and testing requirements. “And they’ll hand out big fines, and maybe they’ll issue press releases, which will annoy some employers” while sending a message to others.

The coming rule is also different from the others in that it is “so politically polarized,” said Matthew Johnson, a labor economist at the Sanford School of Public Policy at Duke University. “It’s highly likely that many companies will comply without having to do anything. “

Johnson said his research shows that the negative publicity companies receive when OSHA announces that they are not complying with health and safety regulations is “effective enough.”

Yet in parts of the country where Covid-related restrictions are unpopular, the vaccination rule could meet resistance from government 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 those agencies sometimes balk at federal rules, Berkowitz noted.

In addition, relying on whistleblowers in these areas could be problematic. Many workers don’t know how to file a complaint with OSHA and might fear retaliation for it, Johnson said. These dynamics make it likely that the agency will prioritize industries with low vaccination rates, such as meat packaging or construction, and perhaps certain regions, he said.

Commercial concerns

Once OSHA releases the draft rule, a brief public comment period will likely follow, allowing companies to voice their skepticism and suggest changes, Michaels said.

One problem for companies could be the cost of weekly testing and record keeping for workers who refuse to be vaccinated, which Gostin said could prompt companies to simply impose vaccinations by “default.”

Lex Taylor, who heads a group of companies based in Louisville, Mississippi that make heavy industrial equipment like forklifts and generators, called the new rule “tough,” saying it isn’t. clear how often it will have to test those of its 1,300 workers. who refuse vaccination. Even after offering an extra day of vacation to get vaccinated, only 30% of its workforce has been vaccinated so far, he said.

Given labor shortages, Taylor said he was unable to impose vaccination and risk losing employees. “It’s just impossible,” he said, pointing to the hole in his workforce this would create given the number of his workers who remain unvaccinated. “Logic wants it to be irresponsible. It’s crazy.”

This means that he will have to design a test protocol. But the limited supply of at-home Covid tests could make it difficult to buy them wholesale and cheaply, he said, adding, “If we have to have a negative test result before the employee can come to the work, this is really going to be an administrative nightmare.

In response to the shortages, the White House has pledged to increase the purchase of the tests for distribution to the public.

Scott Waller, president of the Mississippi Economic Council, said his organization has been promoting vaccinations, but member companies don’t know how to prepare for the rollout of the vaccine rule.

“The idea sounds great, but what are some of the unintended consequences? Waller asked.

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 difficult for management to track compliance in multiple places.

While companies broadly support employee vaccinations, they are concerned that a requirement could cause employees to quit at a time when many companies face a shortage of workers, Waller said. In Michigan, Henry Ford Health System announced Tuesday that 400 employees had resigned during the system’s vaccination tenure. Yet this is only about 1% of the health system workforce.

Push from the White House

The White House says the evidence supports the effectiveness of the warrants. He released a report Thursday claiming that immunization requirements in many organizations have helped push their employees’ immunization rates to more than 90 percent – a rate “substantially higher” than the 63 percent. percent of the working-age population who are fully immunized.

Biden implored companies not to wait for the requirement to go into effect.

“My message is to demand that your employees get vaccinated,” he said in remarks Thursday. “With the vaccinations, we will finally beat this pandemic. Without them, we face endless months of chaos in our hospitals, damage to our economy and anxiety in our empty schools and restaurants and far fewer businesses. “

While up to half of unvaccinated workers said in polls that they would quit their jobs rather than be forced to get vaccinated, anecdotal evidence suggests the number who quit may be much smaller.

Meanwhile, OSHA received a boost in the Covid relief bill that Biden signed in March, which provided $ 100 million for inspectors, a whistleblower program, and health and safety grants. security, according to the Ministry of Labor – all elements of the agency’s enforcement efforts.

“OSHA should emphasize that it will enforce the law rigorously, devote significant resources to inspections and enforcement, and make it widely known that employees should speak out against employers who fail to meet standards. OSHA, ”Gostin said. .

“This combination will have a strong impact,” he said.

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