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November 11, 2021

How will Biden's vaccine mandate be enforced? Here's what experts say.

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    The Biden administration's vaccine mandate for large employers will likely rely heavily on whistleblower complaints to identify violations and drive enforcement actions—but some critics warn that this may increase the risk that employers will retaliate against employees who raise red flags.

    Resource library: How health care organizations can navigate vaccine mandates and other issues

    OSHA's Covid-19 vaccine mandate—and subsequent legal challenges

    Under an interim final rule published by the Occupational Safety and Health Administration (OSHA), workers at all U.S. employers with 100 or more employees will be required to either get vaccinated against Covid-19 by Jan. 4 or submit to weekly testing.

    Employers that do not comply could face federal fines of almost $14,000 per violation, and repeat violators could be fined up to 10 times that amount, CBS News reports.

    According to the Washington Post, OSHA's rule is expected to cover 84 million workers, and the Biden administration estimates that it will prevent more than 250,000 hospitalizations and 6,500 deaths from Covid-19 over six months.

    Since the rule was published, it has faced numerous legal challenges from Republican-led states, conservative legal groups, and advocacy organizations. On Saturday, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit in Louisiana temporarily blocked the OSHA vaccine mandate, saying that a lawsuit "g[a]ve cause to believe there are grave statutory and constitutional issues with the mandate."

    In response, the Department of Justice (DOJ) argued it has the legal authority to mandate Covid-19 vaccines or testing for larger companies and that the rule is necessary to keep workers safe, The Hill reports.

    Stopping OSHA's rule would "likely cost dozens or even hundreds of lives per day," DOJ wrote in a filing to the Fifth Circuit Court of Appeals. "Petitioners’ asserted injuries, by contrast, are speculative and remote and do not outweigh the interest in protecting employees from a dangerous virus while this case proceeds."

    How OSHA plans to enforce the mandate

    According to AP/CBS News, should the mandate survive its legal challenges, OSHA will be in charge of its enforcement. However, with just 1,850 inspectors to oversee 130 million workers across 8 million job sites, agency officials said that—while they will conduct spot-checks of businesses—they will largely rely on complaints to drive investigations and enforcement actions.

    Jim Frederick, the acting chief of OSHA, said the agency will focus on job sites "where workers need assistance to have a safe and healthy workplace … That typically comes through in the form of a complaint." Currently, around 20% to 25% of all OSHA inspections are initiated by an employee complaint.

    "There is no army of OSHA inspectors that is going to be knocking on employers door or even calling them," said Debbie Berkowitz, a former OSHA chief of staff who is a fellow at Georgetown University's Kalmanovitz Initiative for Labor and the Working Poor. "They're going to rely on workers and their union representatives to file complaints where the company is totally flouting the law.''

    But some critics have warned that relying on complaints for enforcement may increase the risk of employer retaliation against whistleblowers.

    "Technically," Berkowitz said, "the law says that companies can't retaliate against a worker for waging a health and safety issue or filing an OSHA complaint or even reporting an injury. But retaliation is rampant.''

    According to a report from the National Employment Law Project, OSHA dismissed more than half of the Covid-related retaliation complaints it received from whistleblowers without further investigation. And just 2% of these complaints were resolved in the five-month period the law project studied.

    "OSHA needs to improve its handling of whistleblower complaints,'' the Labor Department's Inspector General, its internal watchdog, wrote last year. "When OSHA fails to respond in a timely manner, it could leave workers to suffer emotionally and financially, and may also lead to the erosion of key evidence and witnesses.''

    However, most employers are expected to comply with the vaccine mandate, just as they have with other rules issued by OSHA, AP/CBS News reports.

    "Most employers—they're law-abiding,'' said David Michaels, an epidemiologist and professor of public health at George Washington University and a former OSHA chief. "They're trying to make sure that they meet the requirements of every law and regulation. ... Now OSHA will follow up. They'll respond to complaints. They'll do spot checks. They'll issue citations and fines, and they'll make a big deal of those" to discourage other violations. (Marimow/Rosenberg, Washington Post, 11/9; Weixel, The Hill, 11/9; AP/CBS News, 11/9; AP/Modern Healthcare, 11/9)

    The Covid-19 resources you need right now

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