Rich Pedroncelli/Associated Press
- The Occupational Safety and Health Administration (OSHA) is tasked with ensuring workplace safety.
- Biden has directed OSHA to require some large businesses to mandate vaccines for employees.
- Republicans have vowed to fight the mandate, and OSHA’s rule will likely face legal challenges.
- See more stories on Insider’s business page.
If the Occupational Safety and Health Administration were to inspect every workplace under its jurisdiction, it would take 129 years to complete the task, according to a 2011 report from AFL-CIO, the largest federation of unions in the US.
The workplace safety agency, commonly known as OSHA, has now been tasked with implementing and enforcing the new vaccine mandate that President Joe Biden announced Thursday. Under the mandate, all businesses with more than 100 employees will have to require COVID-19 vaccinations or submit employees to weekly testing.
The White House said OSHA is drafting the rule, which will affect more than 80 million workers, and will enforce it once it goes into place. The administration did not say under what deadline OSHA will be drafting the rule or when it will go into effect.
OSHA did not immediately respond to questions from Insider about how it plans to enforce the vaccine mandate rule.
What is OSHA?
The mission of OSHA, which is housed in the Department of Labor, is to “ensure safe and healthful working conditions for workers.”
The regulatory agency was established in 1971 after President Richard Nixon signed the Occupational Safety and Health Act. The law was created to assure employee health and safety by ensuring employers maintained workplaces that were free from hazards including toxic chemicals, mechanical dangers, and unsanitary conditions.
The act also created OSHA, giving it jurisdiction over most private sector employers in the US and their workers across all 50 states, as well as federal government workers. All employers covered by OSHA are required to comply with the agency’s health and safety standards.
The agency has the power to conduct workplace safety inspections without notifying the business in advance in order to make sure those standards are met.
According to OSHA, on-the-job deaths decreased 63% after it was established, from an estimated 14,00 in 1970 to 5,250 in 2018, despite a doubling of the number of workers in that time.
How will OSHA enforce the vaccine mandate?
OSHA has the authority to issue new health and safety standards. The standards-setting process is typically completed through a series of steps that can include evaluations by committees, consultations with small businesses, and a window for public input.
However, OSHA also has the power to skip the usual bureaucratic process and implement an emergency temporary standard (ETS), according to the agency.
In the COVID-19 action plan announced by the White House on Thursday, Biden specifically directed OSHA to issue an ETS for the private sector vaccine mandate.
Per the agency, if OSHA determines 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,” it can bypass the standard procedure and implement an ETS.
Once set, the new standard has six months to go through the usual process to become permanent, and can be challenged in an appeals court during that time.
What difficulties will OSHA face in enforcing the vaccine mandate?
Republican lawmakers like Texas Gov. Greg Abbott and Georgia Gov. Brian Kemp have already vowed to fight the vaccine mandate, so it’s likely the ETS will be challenged in court. If challenged, the ETS will remain in effect unless a court specifically blocks it.
The courts will likely have to determine whether the Commerce Clause of the Constitution gives OSHA the authority to broadly mandate vaccines, Brian Dean Abramson, a vaccine law expert, told Insider’s Erin Snodgrass.
The Commerce Clause gives Congress the power to regulate commerce with foreign nations and among states. Abramson said the clause has historically been applied broadly, allowing the government to act when something is affecting interstate commerce, such as COVID-19.
However, disagreements exist over the extent of the powers it grants to Congress, and Abramson said a successful challenge under this clause “would have the strongest impact toward eliminating the ability of the federal government to require broad vaccination mandates.”
OSHA’s previous role in enforcing pandemic guidelines
OSHA already issued an ETS at the federal level during the COVID-19 pandemic.
In June, the agency issued an emergency standard to protect workers in healthcare and related industries from contracting the virus, focusing on workplaces where employees are most at risk, including hospitals, nursing homes, and assisted living facilities.
The June ETS required workplaces to have a written plan to mitigate transmission, provide proper ventilation, implement social distancing, and supply employees with personal protective equipment, among other requirements. It also mandated employers provide paid time off for employees to get vaccinated.
OSHA said employers would have 14 days to come into compliance after the June rule took effect, though it did not say how it planned to enforce the rules.
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