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As Biden’s vaccination or testing mandate approaches, questions about enforcement arise

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President Joe Biden says his comprehensive vaccination and testing mandate for Covid-19 will boost the economy and save lives, but as companies prepare for the new requirement, they are not only wondering what will be in the regulation, but also, how it is enforced.

The mandate, which applies to organizations with 100 or more employees and an estimated 80 million workers, has already threatened two dozen Republican attorneys general with lawsuits and caused some people to quit their jobs. However, a bigger administrative challenge could be the regulatory compliance authority.

The occupational health and safety administration had already processed a broad order before the new regulation, which is to be enacted in a few weeks. To maximize its resources, the agency typically prioritizes high-risk industries and targets repeat offenders, offering help to non-compliant companies in addition to fines.

However, according to a Freedom of Information Act response received by NBC News in early 2020, OSHA only had about 862 inspectors to meet all of its regulatory enforcement obligations – and that number has been falling in recent years. This year, the agency lost another 65 inspectors, according to OSHA, despite new hires.

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

OSHA’s legacy as a tense agency means there won’t be an “army of inspectors knocking on doors,” said Debbie Berkowitz, former senior policy advisor to OSHA.

“It would take 160 years for OSHA to be in each workplace just once,” she estimated. “It’s an understaffed, understaffed agency from the start.”

Michaels, who is familiar with the internal considerations of the rule, expects most companies to abide by it without government intervention. “It’s not an explicit vaccination mandate,” he noted, but rather a requirement to take steps to protect the workplace from the risk of infectious workers.

OSHA “will tell employers to ensure that potentially infectious workers do not enter the workplace, and they can do this in a number of ways,” Michaels said. This includes regular testing and close tracking of company employee compliance or even requirements for working from home, he said.

“I have spoken to hundreds of business leaders over the past week, and the question they are asking me is not how OSHA is going to get this through. The question is, what do I have to do to comply with that? ”Michael said.

Name and shame

If companies fail to comply, OSHA will “have a lot of leverage,” Michaels said. “They can impose heavy fines, let workers know that they can complain if their employer doesn’t do it, and they can run spot checks.”

If a company engages in good faith, Berkowitz expects that OSHA will not fine force the problem.

However, an important aspect of enforcing this requirement, which is different from some other OSHA regulations, will be the response from employees who are at risk of contracting Covid in the workplace, which act 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 but vocal minority that doesn’t. What you have to do is grab the attention of the silent majority and let them whistle about any employer. “

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

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

“They send inspectors and maybe find jobs where they have not done so yet,” said Gostin, referring to compliance with the vaccination and testing requirements. “And they will impose heavy fines and maybe issue press releases that embarrass some employers” while messaging others.

The upcoming ruling also differs from others in that it is “so politically polarized,” said Matthew Johnson, a labor economist at Duke University’s Sanford School of Public Policy. “It is quite likely that a lot of companies will stick to it without having to do anything.”

Johnson said his research shows that the negative advertising companies receive when OSHA makes public that they are failing health and safety regulations is “quite effective”.

However, in parts of the country where Covid-related restrictions are unpopular, the vaccination rule could face opposition from government officials, businesses and the public, he said. More than 20 states have health and safety agencies that cover both the public and private sectors, and some of those agencies occasionally resist federal regulations, Berkowitz noted.

In addition, relying on whistleblowers in these areas could be problematic. Many workers do not know how to file OSHA complaints and could fear retaliation, Johnson said. These dynamics make it likely that the agency will prioritize industries with low vaccination rates like meat packaging or construction, and possibly certain regions, he said.

Business concerns

Once OSHA publishes the draft rule, there will likely be a short public comment period for companies to express their skepticism and propose changes, Michaels said.

A concern for companies could be the cost of weekly tests and records for workers who refuse to be vaccinated, which Gostin said could lead companies to simply make vaccinations mandatory by default.

Lex Taylor, who runs a group of Louisville, Mississippi-based companies that make heavy industrial equipment like forklifts and generators, called the new rule “a hardship” and said it was unclear how often he would have to test those of his 1,300 workers who refuse to be vaccinated. Even after offering an extra day of vacation to get vaccinated, only 30 percent of his workforce has received the vaccination so far, he said.

Given the labor shortage, Taylor said he was unable to order vaccination and risked losing employees. “It’s just impossible,” he said, emphasizing the gap in his workforce that would arise given the number of his employees who are still not vaccinated. “Logic dictates that this is irresponsible. That’s crazy.”

This means that he has to create a test protocol. But the limited supply of at-home Covid tests could make it difficult to buy in bulk and cheaply, he said, adding, “If we have to have a negative test result before the employee can show up for work, it will really going to be an administrative nightmare. “

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

Scott Waller, president of the Mississippi Economic Council, said his organization sponsored vaccination, but member companies are confused about how to prepare for the vaccine rule to be rolled out.

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

According to Michaels, the rule should even apply to chains with a total of 100 employees in their various branches.

“That makes it a lot harder,” said Waller, noting that it would be more difficult for management to keep track of compliance across multiple locations.

While companies largely support vaccinating their employees, they fear a requirement could result in employees quitting at a time when many companies are facing labor shortages, Waller said. In Michigan, the Henry Ford Health System announced Tuesday that 400 employees had resigned because of the system’s vaccination mandate. However, that is only about 1 percent of the workforce in the health system.

White House advance

The White House says the evidence supports the effectiveness of mandates. A report was released Thursday claiming that vaccination regulations in many organizations have helped raise their employees’ vaccination rates to more than 90 percent – a “significantly higher” rate than that of the 63 percent of the working-age population who are fully vaccinated.

Biden pleaded with companies not to wait for the requirement to take effect.

“My message is, ask your staff to get vaccinated,” he said in a comment on Thursday. “With vaccinations we will finally defeat this pandemic. Without it, we face endless months of chaos in our hospitals, damaging our economies, “and fear in our schools and empty restaurants and much less commerce.”

While surveys of more than half of unvaccinated workers indicated that they would quit their jobs instead of being forced to get vaccinated, anecdotal evidence suggests that the number of those who quit might be much lower.

Meanwhile, OSHA received a boost from the Covid Relief Act, which Biden signed in March, which the Department of Labor says provides $ 100 million for inspectors, a whistleblower program, and health and safety grants – all elements of the agency’s enforcement efforts.

“OSHA should stress that it will rigorously enforce the law, that it will devote large amounts of resources to inspections and enforcement, and that it will make it widely known that workers should whistle about employers who do not adhere to OSHA standards,” said Gostin.

“That combination will have a big impact,” he said.

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