*even before it’s issued…

On September 9, President Biden announced that he was directing the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) that would “require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” The OSHA standard will also provide paid time off for employees to get vaccinated and recover from any side effects. (Biden also signed an Executive Order requiring all federal executive branch workers and contractors doing business with the Federal Government to be vaccinated.) On October 12, the final standard was sent to the Office of Information and Regulatory Affairs (OIRA) at the White House for final review. I would expect the new ETS to be issued within the next two weeks.

  1. Will this be an OSHA vaccine mandate? No. Despite the fact that it’s often characterized as a pure vaccine “mandate,” it’s actually a “safe workplace measure” — an effort to ensure that infectious workers can’t enter a workplace and infect other workers. There will be no requirement that employers vaccinate workers. Workers will either have to be vaccinated or they can be tested weekly. Former OSHA head David Michaels elaborates more on that theme here. Although we haven’t seen the text of the new standard, it is likely that employees who work exclusively from home will be exempted from the “vaccinate or test” requirements.
  2. Will the mandate go beyond vaccines and tests, for example requiring masks, improved ventilation and distancing? Probably not. This is a problem, because we know that because of breakthrough infections (no vaccine is 100% effective), workers need additional mitigation measures to be fully protected, especially those workers who are exposed to the public — and not just their co-workers.  Many of these measures were proposed to be included in the original comprehensive Emergency Temporary Standard that Biden promised to issue by March 15, but ended up only covering health care workers.
  3. What about workers in small businesses? The policy announced by President Biden will only cover companies with 100 or more employees. While this makes it much easier for OSHA to write a standard without worrying about economic feasibility issues for small employers, it’s highly problematic for a number of reasons:
      • Workers in small businesses face no less “grave danger” than workers in large businesses.
      • We don’t know yet how this will affect franchises like MacDonalds. Will each franchise (with fewer than 100 employees) be considered individual businesses and therefore exempt from the ETS? The OSHA standard will also probably not cover workers in the “Gig” economy – Uber and Lyft drivers, Door Dash delivery people, etc. There are generally considered “independent contractors,” so don’t assume that your Uber driver will be required to be vaccinated or tested.  Many of these issues will likely be address as part of OSHA’s COVID enforcement policy, rather than the standard.
      • The small business exemption will hurt economic growth where workers in small businesses are afraid to return to work due to COVID-19. Firms with fewer than 100 employees employ around 40 million American workers. That’s a lot of people for whom the vaccination/test mandate will not cover.
      • Small businesses who are federal contractors — or who subcontract with federal contractors, will be required to comply with Biden’s Executive Order requiring vaccination for their employees.
      • This small business exemption sets a terrible precedent for future OSHA standards. Small business associations have requested coverage or enforcement exemption for just about every standard OSHA has ever issued. And OSHA has been consistent in never providing a small business cutout for any health or safety standard. (Some recordkeeping requirements exempt small businesses.) Ironically, the small business cutoff hasn’t stopped opponents from claiming the standard will threaten small businesses, as the Wall St. Journal parrots.)
  4. How will a tiny agency like OSHA enforce this mandate? Good question. OSHA is a tiny agency with a current budget less than $600 million — basically a rounding error when it comes to the Federal Government’s total budget. (EPA’s FY 2021 budget, by comparison, was $9.2 billion.)  OSHA sunk to the lowest level of inspectors in its history at the end of the Trump administration. But, of course, the agency’s tiny budget is not a new issue. So how will enforcement work for the new Vax/Test ETS?
    • First, OSHA does not have to inspect every covered workplace in order to ensure compliance. For example, if new requirements cover 5 million workplaces, that doesn’t mean that OSHA will need to do 5 million inspections. Most employers will comply without an OSHA inspection, some will comply even before the standard is issued. As Dr. Michaels points out: “When I ran OSHA, I found that most employers move quickly to comply with new rules’ requirements, often even before the rules went into effect. Employers recognize that they will soon have to comply, and it is always better to eliminate a hazard before workers are hurt.” In other words, most American employers — like most American citizens — willingly comply with the law even if there’s not a cop looking over their shoulder. Also, those employers who had wanted to require vaccines and/or testing but were intimidated by the testing controversy will welcome the new rules.  Now they can implement a protective policy and blame it on Biden.
    • The new standard will mainly consist of a written program describing how the vaccine/test regime will work in a specific workplace, and records documenting that workers have either been vaccinated or tested. OSHA will have several enforcement options:
      • It is likely that OSHA inspectors will look at the employer’s program every time an inspector is at a worksite: for a COVID inspection, or for any other inspection (e.g. fall protection, machine guarding, chemical exposure), just as OSHA now looks at injury and illness records during every inspection, as former OSHA Enforcement Director Richard Fairfax points out.
      • When OSHA receives a complaint from a worker about non-compliance with the COVID standard, OSHA has the option of conducting an on-site inspection, or conducting a “remote” inspection. OSHA would contact the employer to request that they send to OSHA evidence documenting compliance. OSHA would then only do a physical inspection that evidence is not satisfactory.
    • Despite the small size of OSHA’s maximum penalties ($13,653 for a serious violation) and a normal penalty is usually far less, OSHA has other ways send a strong message by issuing multiple citations to a single employer or a willful violation in particularly egregious situations, and OSHA can use press releases to publicize individual citations so that all employers know that OSHA is serious and on the job.
  1. Is OSHA reaching beyond its authority? OSHA is authorized to assure safe and healthful working conditions by enforcing OSHA standards. One of the most effective ways to protect workers from a hazard – whether a chemical or infectious disease – is to remove the hazard from the workplace. In this case, an infectious worker is a potential hazard to other workers. Testing and vaccination will significantly reduce that hazard by making the worker non-hazardous.  Section 6(c)(1) of the Occupational Safety and Health Act authorizes OSHA to issue an emergency temporary standard, bypassing many of the requirements of the normal decades-long regulatory process, if the agency determines that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and an ETS is necessary to protect employees from such danger.  OSHA satisfied those conditions when it issued the health care ETS last June and should have no problem satisfying those same conditions in its new ETS.
  2. Has OSHA ever required vaccines before?  The only OSHA standard that addresses vaccines is the 1991 Bloodborne Pathogens Standard that protects workers again HIV, Hepatitis B & C and other bloodborne diseases. OSHA required employers to offer the hepatitis B vaccine to employees and pay for the vaccine, but did not require employees to get vaccinated.  This made sense because hepatitis B and HIV, unlike COVID-19, cannot be transmitted from one worker to another in the workplace.