President Biden’s pronouncement that private businesses with more than 100 employees must have all of their workers vaccinated against Covid 19 stirred up controversy and raised serious questions about how it can be implemented.
Doubts have been raised about the conitutionality of the federal government requiring citizens to be vaccinated when such health regulation is normally relegated to the states. The governors of 19 states already have announced their intention to challenge the order in court, as have other organizations.
Some employers and employer groups like the National Association of Manufacturers have expressed support for the order. It takes responsibility off their shoulders and shifts blame to the administration they would otherwise need to bear if a company management undertakes to require all their workers to be vaccinated, even though it is believed to be legal for them to do so.
Complicating matters is the administration’s choice of federal OSHA to implement and enforce the new mandate. (Another complication: Biden’s chief of staff Ron Klain let slip that turning this over to OSHA was utilized by the administration as the “ultimate work-around,” a statement that may not impress judges as court cases develop).
The intention is to have OSHA issue an Emergency Temporary Standard laying out precisely what will be expected of employers, along with specified procedures and details of enforcement. The employers could face violations and heavy fines if they choose not to comply with the mandate..
One problem for the administration is that an ETS is not that easy to enforce and defend. OSHA has not successfully issued an ETS since 1978. Over the years, courts has established strict requirements holding OSHA to prove that such a “grave danger” exists to workers that the regular rulemaking and enforcement process is inadquate to address the immediate health threat.
On the day after his inauguration in January, Biden ordered OSHA to an ETS telling employers how to manage Covid in their workplaces – but one which would not call for mandatory vaccinations.
By the time OSHA could produce the ETS in mid-March, the prevalent belief among policymakers was that the emergency situation had passed because of widespread vaccinations.
Soon after, the President and other leaders said that many of the restrictions adopted in 2020 could be lifted, including the wearing of masks by those who already had been vaccinated.
As a result, the ETS eventually OSHA issued was confined primarily to workers in the healthcare industry. However, earlier this year it announced a National Emphasis Program (NEP) for Covid 19 enforcement targeting employers in what it considers to be higher hazard industries, including restaurants, some manufacturing and warehouses.
Since then, there has been a surge in Covid cases created by the Delta variant of the virus, which has seen the reimposition of maks and other restrictions, including adoption of vaccine passports.
The most recent government figures reveal 75.3% of U.S. adults have gotten at least one coronavirus vaccine shot. At present, the national infection rate is just as high as it was in late January – when only a relative handful of Americans were vaccinated.
Public distrust has been fueled by unanswered questions: If natural immunity is superior to the vaccine, why are those who already have survived the illness required to be vaccinated? Is the disease evolving to bypass the vaccine protection?
Even if the new OSHA ETS survives court scrutiny, these questions still need to be answered, along with ones arising from how the order can be implemented and enforced by a small, chronically underfunded agency whose jurisdiction does not extend to 22 states who have their own OSHAs.