When President Joe Biden announced that the government would mandate workplace vaccination and testing at all U.S. companies with more than 100 employees, the job of putting that policy into effect fell to the Occupational Safety and Health Administration, a small agency within the Department of Labor that has struggled to respond to the pandemic.
The agency, which is normally directed by the Assistant Secretary of Labor for Occupational Safety and Health, has not had a Senate-confirmed leader since 2017, the first year of the Trump administration. President Biden’s nominee, Doug Parker, is the chief occupational safety and health regulator in the state of California. His nomination has been awaiting a final vote in the Senate since June.
The task facing the agency is to issue, as quickly as it can, an emergency temporary standard (ETS) that would require employers to abide by the administration’s mandate at risk of financial penalties of up to $14,000 per violation. It would be required to follow up with a permanent rule, subject to significantly more public scrutiny and potential court challenges, within six months.
And then, it would have to enforce it.
“A big challenge that OSHA faces is that as an agency, it is historically understaffed and underfunded,” said Jennifer Shinall, a law professor at Vanderbilt University. “So, even assuming that this new rule holds up in court ... actually enforcing the rule is a whole different story.”
OSHA did not respond to an email from VOA requesting comment.
Slow start to COVID response
OSHA’s new assignment will require the agency to act with an urgency that was notably absent in the first year of the pandemic. In February, the Labor Department’s inspector general issued a report critical of the agency’s response during the preceding 12 months. Among other things, it noted that in 2020, as the pandemic raged, the agency conducted half as many worksite inspections as it had the previous year, and did the majority of them remotely.
“With most OSHA inspections done remotely during the pandemic, workplace hazards may go unidentified and unabated longer, leaving employees vulnerable,” the report found.
The inspector general also said that the agency had failed to use its authority to issue an ETS that would have obligated employers to take specific actions to keep workers safe from the spread of the virus.
“While OSHA has issued several guidance documents to enhance safety provisions during the pandemic, guidance is not enforceable like rules or standards would be, and OSHA has not issued an emergency temporary standard during the pandemic for airborne infectious diseases that may better protect employees’ health and safety at worksites,” the report said.
As an agency, OSHA has existed as an entity within the Department of Labor since the Occupational Safety and Health Act took effect in 1971. The agency’s mandate was to take over and expand work that had previously been done by the Bureau of Labor Standards. The law that created the agency was passed in response to an increase in on-the-job deaths of American workers in the 1960s, as the economy’s postwar expansion accelerated.
As federal agencies go, OSHA is not a large one, with a budget of $591 million in fiscal 2021. And until recently, it had been shrinking. In 2019, OSHA had just 752 inspectors to ensure workplace safety for more than 107 million private sector workers in the U.S., the lowest number in the agency’s history.
A hiring freeze put in place during the early years of the Trump administration exacerbated a shortage of qualified inspectors, as experienced employees retired and the agency failed to maintain a pipeline of replacements.
Since then, the number of inspectors has ticked up but remains below recent historical norms.
A rocky ETS record
While there is no doubt that the agency has the authority to issue emergency rules that can be enforced without a period of public notice or comment, OSHA’s history with ETSs may explain why it was so slow to act.
In July, when the agency issued a much more limited ETS that required specific COVID-19-related precautions in health care settings, it was the first time in 38 years that it had exercised that authority.
From 1973 to 1983, the agency faced legal challenges to six separate ETSs, and lost five of them. Until July, it had never issued another.
However, some experts believe that the agency is on firmer footing with a vaccine mandate than some might believe.
“My gut instinct is that this will not be put on hold,”Brian Dean Abramson, an adjunct professor of vaccine law at Florida International University and the author of the Bloomberg Law and American Health Law Association treatise Vaccine, Vaccination, and Immunization Law, recently told VOA.
“OSHA has fairly broad authority delegated to it to ensure worker safety,” he said. “The broad strokes of what has been presented – that employers with over 100 employees require employees be vaccinated or have some other measures in place to prevent the spread of infection or face an OSHA fine – I think that is likely to ultimately be upheld,” Abramson said.
Enforcement challenges likely
Even if the agency’s rule holds up in court, it would face practical difficulties when it comes to enforcing it. Unlike other federal labor laws, the Occupational Safety and Health Act does not create a private right of action for employees.
That means that if a company is in violation of the law, employees do not have the standing to bring lawsuits themselves. What they can do is file a complaint with OSHA, and hope that the agency itself initiates an enforcement action. However, considering OSHA’s staffing problems, there may be considerable delays before companies that do not observe the vaccine mandate can be held to account by the government.
According to Shinall, the Vanderbilt law professor, the coming OSHA rule might be more effective in changing accepted norms than in compelling compliance through the force of law alone.
“It does have the power to encourage the proliferation of vaccine mandates in the private sector in this country – even if not directly through OSHA enforcement mechanisms – but indirectly, through encouraging employers to comply and shifting norms about what is appropriate for employers to do in the workplace,” she said.