OSHA CovidButcher cutting meat on the Food Processing Plant

Yesterday federal OSHA issued its long anticipated Vaccine-or-Test Emergency Temporary Standard that requires all private sector employees in companies with more than 100 employees to either be vaccinated against COVID-19 or undergo weekly testing.  As expected, the OSHA standard has generated quite a bit of controversy.

Many Republican Governors are predictably opposing the new standard.

In Florida, Attorney General Ashley Moody said it will challenge the emergency vaccine rule. “I will take swift legal action to stop this unprecedented overreach by the federal government — to protect Florida and our workers from the unlawful edicts emanating from President Biden and his handlers. The President does not have the power to force health policy through a workplace safety department,” Moody said in a press release Thursday….  directed state agencies to notify the governor’s office and state attorney general if they receive any directives from the Biden administration on requiring Covid-19 vaccinations. Separately, Indiana joined Louisiana and Mississippi in a lawsuit filed in US district court on Thursday for “injunctive relief” against the mandate, according to court documents.

South Carolina Governor Henry McMaster called vaccine mandates from the White House “blatantly unconstitutional” and said on Twitter they “are forcing South Carolinians to choose between a vaccine and their jobs.” McMaster issued an Executive Order, prohibiting all 19 state agencies that make up his cabinet from requiring employees to receive the COVID-19 vaccine.  This should be interesting. South Carolina (along with 26 other states, including Indiana), runs its own OSHA state plan, which are required to be “at least as effective” as the federal program, adopt federal standards, and cover public employees — including the 19 state agencies that make up the his cabinet.

The federal government has already threatened to revoke the OSHA state plans of states that refused to adopt OSHA’s June emergency temporary standard that covers health care workers.

One of those states was South Carolina. Another was Arizona which seems to be heading down the road to perdition yet again. A statement from the Industrial Commission of Arizona declared yesterday that

Under Arizona’s long-approved state-plan procedures, the Industrial Commission has exclusive authority to decide if, when, and to what extent the State of Arizona will adopt the OSHA vaccination ETS. The Industrial Commission has diligently followed these approved procedures without issue for 47 years and will follow them as it reviews the 490-page OSHA vaccination ETS publication that OSHA only revealed today. Until such time that the Industrial Commission takes formal action to adopt all or part of the vaccination ETS, however, the temporary standards are not binding or enforceable against Arizona’s private and public sector employers and employees.

Actually, none of that is true. Arizona is required to adopt the OSHA standard (or a standard that’s at least as effective) by December 5. (Nor has Arizona “diligently followed approved procedures” for 47 years.) Someone in Arizona government might want to do a more thorough reading about the rules government OSHA state plan states in Occupational Safety and Health Act and it’s accompanying regulations.

Meanwhile, three dozen Senate Republicans are planning to introduce a Congressional Review Act resolution to formally disapprove and nullify the standard. (This needs a majority in both Houses and will therefore go nowhere.)

Workers Support Vaccine Mandates

Despite Republican politicians’ claims that the OSHA standard is illegal, unconstitutional and will lead to  mass resignations, the majority of American workers support vaccine mandates, whether from employers or government:

    • Overall, the majority of employees (58%) support the executive order mandating vaccinations in the workplace.
      • 64% support the federal mandate for healthcare workers
      • 60% support the federal mandate for federal workers
      • 58% support the federal mandate for employees at companies with more than 100 people
    • 59% of employees support their current employer implementing vaccine mandates no matter the size of the company. The number has stayed steady since August at 60%, despite the announcement of federal mandates and a spike in Delta variant cases.

Despite Republican politicians’ claims that the OSHA standard is illegal and will lead to a public uprising and mass resignations, the majority of American workers support vaccine mandates:

Business Community is Mixed

The business community is mixed.  Some wanted a longer phase-in.

The Retail Industry Leaders Association called the implementation period “insufficient” and said the potential fines for noncompliance are “unnecessary and unhelpful,” warning that “it pits government against private employers instead of working with them to create a safe working environment.”

“While the mandate on private employers technically begins post-holiday, the planning time to design and implement the mandate will fall during the busiest part of the shopping season,”

The Chamber of Commerce, on the other hand, seems to be a bit more accepting:

The U.S. Chamber of Commerce, which dubs itself the world’s largest business organization, in a statement appeared supportive of the “significant adjustments” that OSHA made to the vaccine mandate “that reflect concerns raised by the business community.” The group said it would focus on “helping our members ensure that their employees are vaccinated,” and that it would flag employers’ “operational and implementation issues” to OSHA.

Even in Texas, whose Governor has issued an executive order banning vaccine mandates for employees and customers , the business community is not united in opposition to OSHA’s rule:

The Greater Houston Partnership — southeast Texas’ largest chamber of commerce — praised the move. Bob Harvey, the partnership’s president and CEO, said the organization appreciated OSHA’s flexibility and that it addressed concerns from business owners in Greater Houston. Harvey added that he sympathized with companies worried about losing workers, but said they shouldn’t be too concerned. “When the day finally comes, where it’s either be ‘vaccinated or be separated,’ the vast, vast majority — 99% plus — will be vaccinated,” Harvey said.

Many businesses welcome the federal requirements because they know that vaccines are good for their workers, but are finding it difficult — or too controversial — to impose successful mandates themselves.

And despite predictions of national economic collapse due to mass resignations, corporate mandates have been largely successful, resulting in small numbers of resignations or dismissals.  United Airlines, for example,  said 99.7% of its roughly 67,000 employees have complied with it’s vaccine mandate. Only 232 workers have refused the vaccine. At Tyson Foods, which had terrible COVID outbreaks in its plants last year, a vaccine mandate, negotiated with the United Food and Commercial Workers union,  has resulted in vaccinations for 96 percent of Tyson’s employees.

At least 264 police officers have died of Covid-19 in 2021 while at least 53 have died from gunfire and auto accidents.

Some cities, like New York and Los Angeles, have also issued vaccine mandates for city employees. Some law enforcement and fire department officials and unions are resisting those mandates, even though in 2021, at least 264 law enforcement officers have died of Covid-19 while 53 have died from gunfire and and 53 from auto accidents, the other two leading causes of death.

Both New York and California have OSHA state plans that cover public employees, so municipal employees in both states will fall under the new OSHA standard, which will likely pre-empt the city mandates unless those states issue standard that are “more effective” than the federal standard.  This will also be interesting in that the cities’ requirements do not offer a testing alternative, while the OSHA standard does.

Labor Unions’ Reactions Are Mostly Supportive

Unions have been somewhat mixed, with some opposing mandates, some strongly supporting and some saying the OSHA standard didn’t go far enough. Pilots’ labor unions at American and Southwest had been particularly vocal against vaccine mandates, saying it should be a medical decision for each pilot. (Although pilots’ safety and health conditions are covered by the FAA, not OSHA).

But the pilots and some law enforcement unions are the exception. Most other unions are supportive or thing OSHA should have gone further. American Federation of Teachers union President Randi Weingarten, was very supportive: “These commonsense actions will save thousands of lives and curb hospital stays that are not only devastating for patients but harrowing for the frontline workers charged with their care.”

And the AFL-CIO called the OSHA emergency standard “a step in the right direction,” but warned that it didn’t go far enough.  The union federation opposed forcing workers to pay for testing and called for additional “workplace mitigation measures to reduce virus transmission—including improving ventilation, ensuring physical distancing, and providing paid leave when workers are infected and must quarantine.”

Unions also called for workers to have a strong voice in how the requirements of the standard are implemented. The United Food and Commercial Workers, which represents meatpacking and retail workers,  also called the standard an important first step and noted its successful negotiation with Tyson before implementing its COVID-19 vaccine mandate.

Stay Tuned.

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