Premium

Businesses wonder: When is OSHA going to give us the rules for Biden's vaccine mandate?

AP Photo/Andrew Harnik

Biden’s using the idea of an OSHA mandate at this point the same way parents use the idea of Santa with their kids. It’s an inducement to good behavior by the target audience, but it’s a fiction. It doesn’t actually exist.

If you leave some cookies and milk beside the tree on Christmas Eve this year and wake up the next morning to find they’ve been consumed, you can pretend if you like that the OSHA mandate stopped by overnight and ate them. But deep down you know it was mom, right after she put the presents out.

Really, though, the White House insists that there is a federal mandate being written up. It’s not just something Biden said in a press conference last month to spook businesses into imposing their own vaccine mandates, with no intention of ever codifying that in the form of an OSHA regulation. The regulation is coming, but bureaucracy is bureaucracy. And in this case, the bureaucracy knows that whatever rule it produces will be attacked on all sides in court. So it needs to be extra diligent in crafting that rule.

The White House said at the time of Mr. Biden’s announcement, in early September, that the OSHA standards would take weeks, which is a typical timeline for an emergency standard. This process includes a number of steps, like demonstrating that workers face a grave danger at work and that a rule is necessary to address the danger.

Almost a month from the initial announcement, OSHA standards could still be a few weeks away, as it works through a long list of questions that business groups, like the Chamber of Commerce and Retail Industry Leaders Association, have about the finer points of vaccine mandates.

“Top administration officials have been working carefully to ensure the proposal is ironclad,” WaPo claims. One estimate I saw on Twitter today projected that the rule might arrive by Thanksgiving or later once all the legal niceties are ironed out and the it’s submitted to OMB. Businesses are worried about that time frame: “Retailers are eyeing the run-up to the holiday season, which is crucial to their yearly sales and for which finding labor was already set to be a challenge because of the pandemic.” Imagine unvaccinated workers being laid off en masse right before Christmas.

There might be fewer of them than we expect since the numbers lately show that most unvaxxed employees will suck it up and get their shots once their employment is at stake. In fact, per the Times, one recent estimate projects that the mandate would apply to around 25 million unvaccinated workers and would lead around half to get immunized before March. That’d be a big boost to the national vaccination rate but could also mean literally millions of firings if the unvaxxed holdouts are also unwilling to submit to weekly testing in lieu of getting jabbed.

On the other hand, the mandate could conceivably bring some people back to work as their fear of being infected eases. A Goldman Sachs analysis cited by the White House claimed that the federal mandate could lead “many of the five million workers that have left the labor force since the start of the pandemic to return.” Some Americans are so afraid of COVID that they’d prefer to subsist on unemployment benefits instead of pounding the pavement. They might be lured back to workplaces by a vaccine mandate, replacing the unvaxxed who end up quitting.

For that reason, as well as to boost vaccination rates ASAP, Biden has been nudging companies not to wait until the rule is formally issued to put their own vaccine mandates in place. “If employers know OSHA is going to issue a standard requiring certain safety measures, employers start to comply ahead of the requirement,” said an Obama OSHA official to The Hill. “You see this with most OSHA standards — that often by the time it is issued, many employers have complied or are on their way.” That’s why businesses are asking for specifics in advance, so that they can formulate a policy that will fit with the rule before it’s proclaimed. After all, many of them aren’t opposed to the rule:

Many previous OSHA rules, such as those to increase injury reporting during the Obama administration, have typically been met with fierce resistance by the business community, including its most prominent lobbying arm, the U.S. Chamber of Commerce.

But the pending OSHA vaccine plan has not drawn much opposition from the country’s main business lobbying groups so far. And none of the lawsuits against local and hospital mandates have involved the Chamber or the National Retail Federation (NRF)…

“For years, the Republican Party and the business community have been very much in lockstep, but they’re not anymore on a lot of issues,” Conti said. “This is one of those places where I think that fissure will probably become more visible. There will be some opposition to this that is really sort of a knee-jerk political opposition and, quite frankly, formed through some level of misinformation.”

The GOP’s populist base wants the party to fight mandates, especially vaccine mandates and especially a Biden-decreed federal vaccine mandate, tooth and nail on liberty grounds. The business lobby doesn’t care about that. They want their own workplaces to be safe and they want to minimize the amount of time an employee infected with COVID might miss. Forcing them to get vaccinated achieves both goals.

In lieu of an exit question, eyeball this graph from an informative Politico piece about who will and won’t be covered by Biden’s mandate. Companies with 100 or more workers tend to be found in big cities, but big cities are already highly vaccinated. It’s the less densely populated counties that have the lower vaccination rates. And most businesses there have fewer than 100 employees, so they’re exempt from the mandate. Bottom line: Biden’s mandate may help improve vaccination rates among African-Americans more than it will among rural Republicans.