Updated: Nov 5, 2021
With Biden’s recent decision to require vaccinations for all federal workers and contractors, as well as, private businesses of 100 people or more has obviously caused quite the panic among those who feel that their rights are being threatened. The administration’s decision to have the Department of Labor (DOL) implement this policy for private businesses is obviously intentional and actually builds upon precedent already set by many required vaccination and inoculation requirements promulgated by the Occupational Safety and Health Administration (OSHA). There are a number of different vaccinations that are required by OSHA to protect workers from environmental hazards they may be exposed to. For instance, employers are required to offer plumbers a Hepatitus B shot if they are expected to have exposure to bloodborne pathogens or contact with other potentially infectious materials (29 CFR 1910.1030).
The authority by which the Biden Administration will likely develop and enforce this mandate will probably use three different existing mechanisms under DOL: OSHA’s ability to create an Emergency Temporary Standard, the General Duty Clause, and the Penalty
structure already in place for violating rules. Let’s start with the first, Emergency Temporary Standards, or ETS (https://www.osha.gov/laws-regs/standards-development). OSHA has the ability to create an ETS for a number of reasons, but primarily it’s used to address an immediate threat and make a determination that “workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards”. Remember at the beginning of the pandemic how Virginia created a standard for COVID-19 that businesses had to follow? That was an ETS, until it was codified and became permanent. Although an ETS can be challenged in a U.S. Court of Appeals, pending an injunction it will likely have an effect on businesses and be enforceable. Assuming that the Biden Administration want to codify the ETS, you’ll definitely want to pay close attention to the Federal Register where OSHA will publish the proposed permanent standard. This will allow for more debate and generally a public comment review. To get an idea of what this looks like check out the ETS already in place for Covid-19 in healthcare settings: https://www.federalregister.gov/documents/2021/06/21/2021-12428/occupational-exposure-to-covid-19-emergency-temporary-standard
The second mechanism that the Biden Administration will likely employ will be to leverage the General Duty Clause as written in the OSH Act of 1970. Fun Fact, it was originally called the Williams-Steiger Act named after the Democrat and Republican who led the charge to get this bill passed….seems like a foregone era where bipartisanship existed, huh? Anyhow, I digress, the General Duty Clause is what us safety folks sometimes call the “Catch all clause” because it is the default guidance that protects workers in lieu of an actual specific standard that addresses a hazard. Under Section 5(a)(1) it states that each employer, “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”. COVID-19 would be considered a recognized hazard, therefore employers have a duty to protect their workers. Remember earlier when I mentioned the Hepatitis B shot? Well, why would somebody need to get the shot? Answer: to protect themselves from a recognized hazard. When the pandemic first started, the General Duty Clause was used quite a bit to make employers adequately protect their workers. Think of the meat packing industry reports you saw early on. Over time, and as we learned more about the virus and methods of protections, they used existing standards to enforce compliance. For a list of the common regulations click here: https://www.osha.gov/sites/default/files/covid-citations-guidance.pdf
If Biden does lean on the General Duty Clause to enforce these vaccinations, I think one problem he’ll run into is based off a comment he made in his speech, where he said, “We’re going to protect vaccinated workers from unvaccinated co-workers.” Based on the science of what we know about COVID-19, the vaccinated already have protection, and can carry the same viral load as the unvaccinated. It would have been more advantageous of him to say, “We are protecting the unvaccinated from the virus that may be in the workplace environment”.
Lastly, the $14k penalty you heard the President mention is likely to come from the existing penalty structure that OSHA widely uses when they find a violation of their standards. Basically, there are several categories of penalties that can be imposed for: Serioius, Other-Than-Serious, and Willful or Repeated, there’s a couple more but not really important in this context. The maximum penalty for each of these is $13,653 per violation, which is probably where the $14k came from. Oddly enough these penalties do get more expensive every year, as they are adjusted for inflation…take that minimum wage! Anyhow, with the ETS on the horizon one place to keep an eye on would be the instructions given to the Compliance Safety and Health Officer (CSHO), aka, “OSHA inspector”. This will usually be a published document that describes how the OSHA Inspectors will be enforcing the new ETS, here’s the most recent one if you want to get an idea of what they are currently doing: https://www.osha.gov/laws-regs/standardinterpretations/2021-07-07
All that said, as a safety professional I am definitely interested, from an academic level, in how all of this will play out. As for a infringement of civil liberties and constitutional rights, well, that’s for you and the courts to decide!