The Occupational Health and Safety Administration is likely to face difficulty enforcing President Joe Biden’s COVID-19 vaccine mandate and may have to rely on publicly shaming companies, a tactic popularized during the Obama era.
Biden called on OSHA last week to develop an Emergency Temporary Standard that would require employees at companies with 100 or more workers to be vaccinated or be tested once a week. Employers could face fines up to $14,000 per violation.
“The mandate affects somewhere between 80 million and 100 million workers, and just because of the large numbers of employers, that would make enforcement a bit tricky,” said Ian Carleton Schaefer, chairman of New York employment and labor law at the law firm Loeb and Loeb.
OSHA traditionally relies on complaints filed by employees in determining which companies to inspect. However, OHSA usually will not investigate until multiple complaints are filed.
“One big challenge for enforcing OSHA mandates is the fact that OSHA as an agency is historically very underfunded and very understaffed,” said Jennifer Shinall, a professor of law at Vanderbilt University.
Shinall also noted that employees can only file complaints under OSHA. They cannot file lawsuits against employers for violating OSHA rules, as they can under many other federal laws.
Another method of enforcement would entail a registry in which companies would have to report the number of employees vaccinated and tested regularly. OSHA could then target the companies that did not comply or were slow to comply. But no such registry exists at the federal level, and setting one up could entail many difficulties.
“It would be pretty burdensome for the government to set up that kind of registry, and then we’ll get into all kinds of privacy concerns on the part of employees,” Schaeffer said. “So that’s a very big question mark that’s still out there.”
Shinall said OSHA could lean on state and local health departments in order to create such a registry, but that would likely be met with resistance.
“To the extent that states are opposed to these mandates, then that’s going to be very difficult to do,” Shinall said.
Perhaps OSHA’s best option is “public shaming.” During the Obama administration, OSHA pursued a strategy of using press releases to shame companies that incurred the highest levels of OSHA fines, usually $40,000 or more.
“Since this mandate is a highly symbolic action by the federal government, I think the most promising mechanism through which this mandate will work … is through public attention or public shaming,” Shinall said.
A study by Matthew Johnson, a labor economist at Duke University’s Sanford School of Public Policy, found that a single OSHA press release about one company would improve compliance from similar companies. Johnson estimated that OHSA would need to conduct over 200 inspections to achieve the same result as it did with a single press release.
OSHA enforcement of the vaccine mandate depends on the ETS being upheld by federal courts. OSHA has not yet issued the ETS, and its timeline for doing so is not known.
“The bottom line is that OSHA’s record with regard to Emergency Temporary Standards that are challenged in court is not a good one,” said Baruch Fellner, an active retired partner with the law firm Gibson, Dunn, and Crutcher. “It is a very, very high bar with respect to promulgating an emergency temporary standard. And that’s probably the principal difficulty that OSHA has.”
OSHA issued eight ETSs between 1971 and 1983, according to the Government Accountability Office. Federal courts invalidated or stayed five of those orders. Because of the legal difficulties involved with an ETS, OSHA did not issue another one until June of this year, when it issued COVID-19 safety regulations for healthcare providers.
Republican Govs. Kristi Noem of South Dakota, Ron DeSantis of Florida, and Brian Kemp of Georgia have already threatened to challenge the vaccine mandate in court.