Sure sounds like OSHA's going to have a hard time enforcing Biden's federal vaccine mandate

AP Photo/Evan Vucci

I don’t mean a hard time legally, although that’ll probably be the case as well once the lawsuits get rolling.

I mean a hard time logistically. Insider has a look this afternoon at the agency that’s now been tasked with riding herd on vaccination for 100,000 U.S. companies encompassing 80 million workers. OSHA wasn’t well-staffed even in the best of times but they were pared down further during Trump’s presidency as part of his deregulation initiatives. Now Biden’s deputizing them to be the vaccine police for something like half the U.S. economy.

Which raises two questions. Are they remotely capable of handling this task? If they aren’t, does it matter?

“It’s always been true with OSHA that especially relative to other government agencies, it’s just woefully understaffed,” Professor Matthew Johnson, a labor economist at Duke University’s Sanford School of Public Policy, told Insider. “From the outset, they’ve been kind of under-resourced both in terms of their manpower, in terms of the inspectors, and they’ve also always been very limited in the size of penalties that the agency can levy on employers they catch violating the law.”…

By 2019, the total number of OSHA inspectors had fallen to the lowest levels since 1971, according to an April report from the AFL-CIO. There are now only 1,798 total OSHA inspectors, federal and state, coming out to one inspector per 82,881 workers and just $3.97 budgeted per covered worker

“OSHA is rather toothless, in a lot of ways, in the fines that it can implement,” Conti said. “They’re very low in proportion to the harm that is often caused, but employers will fight these fines and appeal them through every avenue possible, spending two, three, four, ten times as much money on legal proceedings then they would actually just paying the fine.”

“OSHA now has an estimated 800 safety and compliance inspectors to cover the more than 100,000 private-sector companies affected by the new rule,” Reuters reported today. They were overwhelmed by their COVID workload even before Biden dropped his new mandate on them. Reuters reported back in January that workers’ complaints to the agency about substandard COVID precautions at their jobs were frequently ignored, with inspectors either not visiting to assess the problem or waiting months to do so. Even when fines were imposed, “[t]wo-thirds of employers cited by OSHA for COVID-19 safety violations had not paid fines, and more than half appealed the OSHA citations.”

Insider noted that problem too. Despite the fact that OSHA fines typically aren’t steep, businesses will fight them tooth and nail in court rather than concede that a safety violation occurred. Imagine OSHA suddenly having to contest thousands of lawsuits from employers over COVID vaccine surveillance.

But do we have to imagine it? Biden’s potential ace in the hole is the fact that lots of employers quietly want to mandate vaccination for their workers but have been reluctant thus far. The issue is politically charged, so they have to worry about consumer blowback if they order a mandate. And there’s a prisoner’s dilemma in that anti-vax workers can simply quit if their boss orders them to get vaccinated and go to a company that lacks a mandate policy. Biden’s federal mandate solves both of those problems, shifting the blame for a business’s mandate from the boss to Biden himself and reducing the options for anti-vax workers inclined to look for a job where they won’t be required to get vaxxed.

For once, in other words, OSHA and many of the employers it regulates will have the same goal. Business owners may essentially undertake enforcement of the new policy themselves to get their staff vaxxed, claiming that the feds have left them no choice.

Which raises another question. How onerous will this new policy be for businesses? Remember, Biden’s new mandate is actually an either/or: Get vaccinated or get tested weekly, which makes it a testing mandate with an exemption for vaccination. Who’s going to bear the cost of that, though? Employers are anxious to know:

Management-side attorneys say they are fielding frenzied calls from companies with questions over what the rules requiring them to verify that their workers are vaccinated or tested weekly for Covid-19 will actually entail and whether the business or unvaccinated employees will have to pay for the testing…

But there are many questions about what the scope of the rule will be. For instance, does the 100-employee threshold apply to one worksite, or an entire company? Does the company have to pay for testing or does the employee?…

“It’s millions of dollars a year to any size company. I’ve seen companies do it before Biden issued his order and it’s incredibly burdensome and time consuming and may not even guarantee health and safety in the way that mandating vaccines would,” Schaefer said.

Employers want their staffs vaxxed but they don’t want to pay millions per year footing the bill for testing anti-vax workers. I wonder if there’s already pressure on Biden behind the scenes to eliminate the testing option altogether, as Fauci wanted him to do, and make it a pure vaccine mandate. That would simplify things for employers, although they’d still have to verify an employee’s vaccination status.

Even if OSHA realistically can’t enforce the policy or manage a galaxy of lawsuits, it does have one cheap and effective weapon in its arsenal, notes Insider: Shame. The agency took to issuing press releases under Obama identifying companies slapped with large fines for unusually poor workplace conditions. That bad publicity had a salutary effect, with one labor economist who studied the issue claiming “one press release deterred as many violations as over 200 inspections.” If a business owner refuses to enforce Biden’s mandate and OSHA gets wind of it and publicizes that fact, what’ll happen?

That business could take a hit:

On the other hand, because opposing Biden’s mandate has become a Republican rallying cry, a company’s defiance could also drum up business for them on the right. Either way, the biggest bang for the policy buck here is likely to come early when some unvaccinated workers who’ve lingered for months in “wait and see” limbo are finally moved by the mandate to say “to hell with it” and get their shots. Once that low-hanging fruit is picked and the vaccination rate ticks up a bit further, the feds will start running into the hardcore resisters willing to sue, quit, etc, to avoid the shot. Seems unlikely that OSHA will be able to do much at that point and also unlikely that SCOTUS will vindicate Biden on the legal merits, but at least some holdouts will have gotten immunized before this whole matter goes “poof.”

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Jazz Shaw 7:31 PM on October 02, 2022