Last month, Biden directed the Labor Department’s Occupational Safety and Health Administration to issue an emergency rule mandating businesses with 100 or more employees to require their workers be vaccinated or present weekly negative test results. He hopes the coming mandate, which will cover about 100 million workers, will convince more companies to require COVID-19 vaccines on their own.
“Businesses have more power than ever before to change the arc of this pandemic and save lives, and protect and grow our economy,” Biden said Thursday during a visit to a Chicago-area company that announced its employees must be fully vaccinated or tested once a week. “As president, I’m going to continue to do everything I can to get us out of this pandemic. I look forward to more businesses joining that effort.”
Employers are eagerly awaiting the rule’s details, which aren’t expected for another couple of weeks. But OSHA, which is grappling with a lack of funding and inspectors, faces steep barriers in putting the rule in place and making sure it’s followed, former agency officials said.
Republican officials in two dozen states, including ones with low vaccination rates such as South Carolina, Tennessee, and Wyoming, are threatening to take legal action against the rule. Arizona has already filed a lawsuit.
Despite these concerns, former OSHA officials believe the agency can handle the task and draft a rule that withstands legal challenges.
“To issue an emergency standard, OSHA has to show it’s a grave danger,” said David Michaels, an epidemiologist at George Washington University who headed OSHA in the Obama administration. “Currently we have 2,000 deaths a day from COVID. If there’s a better definition of grave danger, I’d like to hear it.”
It typically takes seven years for the agency to implement a new workplace safety rule, but the 1970 law that created the agency allows it to move within weeks to implement an emergency temporary standard if employees are “exposed to grave danger.”
This will be the second emergency temporary standard OSHA has released to protect workers from COVID-19. The first one was issued in June, and established safety requirements for health care workers, such as following requirements for personal protective equipment and disinfecting surfaces regularly.
“They aren’t standards that protect every single worker from every single occupational hazard at all,” said Deborah Berkowitz, a former OSHA official who is now a fellow at Georgetown University focusing on worker safety and health. “But it’s like a minimum wage — it’s a floor below which you should not go. OSHA really needs to set the floor here to protect workers and to protect the public.”
Unions and labor advocates have petitioned for emergency workplace coronavirus rules since the onset of the pandemic in 2020, but the Trump administration declined to act.
The business-friendly Trump administration officials also “hollowed out” OSHA, leaving the agency understaffed, Michaels added. There are still many vacancies for top-level positions at the agency, and the number of inspectors, the people tasked with enforcing OSHA standards, has been steadily decreasing. The $1.9 trillion American Rescue Plan enacted in March allocated $100 million in extra funding to OSHA to better equip it to limit the spread of COVID-19.
But before OSHA can enforce its upcoming vaccine mandate, it will have to withstand legal challenges. OSHA standards are often unpopular, especially among Republicans and business groups. Of the 10-emergency standards OSHA has enacted since 1971, four have been overturned and a fifth was partially blocked.
This time, however, the business community isn’t offering much resistance to the coming vaccine mandate. The US Chamber of Commerce declared it would support OSHA’s mandate, although it and other business groups have written to OSHA with questions and concerns.
The Coalition for Workplace Safety, which includes the Chamber, the National Retail Federation, and the National Association of Manufacturers, asked OSHA to allow business and labor groups to weigh in on the rules to prevent “implementation challenges and costs that would undermine the effectiveness of [the mandate].”
OSHA has not released answers to questions the organizations posed or indicated it would allow any stakeholder input before the rule is issued.
Although businesses are not satisfied with OSHA’s silence, Michaels said he believed a vaccine mandate is supported by large companies. Tyson Foods and United Airlines, for example, already require the coronavirus vaccine, and Michaels predicted that many more employers would comply voluntarily.
But officials in many Republican-led states are opposed to a vaccine mandate. Two prominent GOP governors, Georgia’s Brian Kemp and Texas’ Greg Abbott, have declared they will take legal action to oppose it.
And 24 Republican state attorneys general sent Biden a letter on Sept. 16 stating he should reconsider what they called his “unlawful and harmful plan.” They accused the administration of overstepping its constitutional authority instead of letting Americans make their own decisions about vaccine safety.
Arizona Attorney General Mark Brnovich, a Republican who has launched a 2022 US Senate campaign, has already filed suit against the forthcoming mandate.
“The federal government cannot force people to get the COVID-19 vaccine,” Brnovich said in a statement announcing the lawsuit. “The Biden Administration is once again flouting our laws and precedents to push their radical agenda.”
Despite the looming legal battles, Berkowitz said she doesn’t think the mandate will be overturned because the Biden administration has been directly involved with enacting the rule.
“This isn’t just an agency gone rogue, but it’s coming from the White House, and it’s going to get done,” she said.
The standard is essential to maintaining worker safety as the pandemic death toll continues to rise, experts said. But implementation could be a problem in many states.
Twenty-eight states and territories operate their own OSHA-approved workplace safety programs. These states have 30 days to adopt a federal OSHA rule after it has been issued, opening the door for a delay in states led by officials who oppose a mandate, Michaels said. Those state agencies also must enforce the mandate.
The rest of the states, including Massachusetts, are directly covered by OSHA and do not have to adopt the new vaccine rule for it to take effect and be enforced by federal inspectors.