Can OSHA enforce the vaccine mandate?

The Biden Administration is working to implement a vaccine mandate for any business with more than one hundred employees across the United States. While specifics have not yet been outlined at the time of publication, the Occupational Health and Safety Administration (OSHA) is at the heart of discussion to be the ones responsible for enforcing the mandate. However, many believe OSHA is facing a tough road ahead if this mandate plays out. 

What is OSHA?

OSHA is a government agency that is responsible for implementing and maintaining health and safety regulations to ensure we all work in the best possible conditions. While the agency is more commonly known by those working in the trades and other physically demanding positions, OSHA regulations are a part of every workplace environment. 

The small agency and its state partners consist of approximately 1,850 inspectors nationwide and are responsible for an estimated 130 million workers employed across 8 million worksites. Even with ten regional offices and 85 local area offices, if implemented, what the Biden administration is calling upon OSHA to do, will undoubtedly test the agency’s capabilities. 

OSHA, Inspections, and Fines

Under the current proposal, employers who fail to comply or follow the ongoing Emergency Temporary Standard could face up to $14,000 in potential fines- per violation. Is this something OSHA is capable of doing? 

Generally speaking, OSHA typically spot checks work sites or inspects sites that have been anonymously reported. These reports fall into specific categories that get put into a log for investigation. Over a six-year period, OSHA has an average of  31,121 total inspections per year.  A complaint typically leads to an Unprogrammed Inspection, which then makes up Comprehensive Examinations. If OSHA finds a violation, penalties can be issued. Fines generally are $13,494 per violation, with repeat offenders seeing possible increases up to $136,532 per violation.

OSHA and COVID-19

As it turns out, OSHA has been part of the COVID-19 conversation for quite some time. Many have turned to OSHA when they felt their employer didn’t require or maintain COVID-10 safety precautions- precautions such as mandatory masks, enforcing quarantines following exposure, or initiating the proper contact tracing protocols following positive test results. However, the ability of OSHA to implement these was always deemed a gray area.

However, daily complaints and referrals for Covid-19 are increasing. Daily complaints from the beginning of January were at 12,000 daily, while referrals were reaching 1,840. As of October, complaints are now at 13,312 and nearly 3000 referrals, with no sign of slowing down in the month-over-month trends.

What are the options?

OSHA is an understaffed agency with a struggling budget. What options do they have? As it turns out, there may be some help. 

A recent study published by Matthew S. Johnson in 2020 titled “Regulation by Shaming” found that a single OSHA press release about a company failing in protecting employees would often improve compliance among companies in the same field. With this, companies would set standards for themselves to avoid being shamed into compliance – while also avoiding hefty fines and additional negative publicity. In fact, this single press release was found to have the same impact as 210 separate inspections.

Secondly, as mentioned previously, employees are making efforts to report their employers. With new cases surging across the country, employees are taking drastic measures to protect themselves. However, if the Biden Administration proposal is implemented, OSHA will likely have more authority to follow up on these complaints. However, an internal threat of contacting OSHA may help expedite compliance by the employer and help prevent lawsuits such as employees suing over missed pay due to screening and negligence due to poor Covid-19 protocols.

Little agency, giant task 

Ultimately, most of the conversation surrounding OSHA’s involvement includes much speculation. Before anything becomes official, one would have to assume that the Biden Administration is currently considering all legal and logistical angles. Similarly, many businesses and organizations are probably working with their legal and logistical teams in a very similar fashion. We will have to wait and see if this giant task falls into the lap of the little agency known as OSHA. 

Testing your employees at the end of the day will be the best option to avoid OSHA and keep everyone safe from COVID-19.