President Joe Biden’s new vaccine and testing mandate is expected to affect some 100 million workers, with employers scrambling to figure out how to comply.
Employment attorneys are already being deluged by corporate leaders who want advice about what to make of the executive order, which covers federal employees, federal contractors, and workers at companies with 100 or more employees . Workers must soon be vaccinated or subject to weekly tests.
“Practically half an hour after the president made his speech, I had a line of people on the phone wanting to know when we should comply and how we needed to comply,” said labor and employment attorney Rebecca Demaree.
Demaree, based in Tennessee, told the Washington Examiner that there are unknowns about what the mandate will entail and how exactly it will be enforced because details are still forthcoming. She said that businesses will know more about what to do when the Emergency Temporary Standards are released by the Occupational Safety and Health Administration.
She predicted that the reporting requirements likely won’t be any more onerous than the reporting requirements that companies already face as part of their quarterly reporting. Biden likely chose OSHA to handle the task because it deals with similar functions, she added.
Another question is how exactly OSHA intends to ensure that employers are providing it with accurate information or whether companies are complying with the mandate. This could be enforced through sporadic audits.
For example, with I-9 reporting, through which employers verify that their employees are authorized to work, companies do their own checks on employees and submit the information to the federal government. The government doesn’t have the bandwidth to confirm all the submissions, but occasionally, the Department of Homeland Security will do sporadic spot audits or complaint audits.
Regardless, OSHA is a small agency, and adding in vaccination duties would likely increase the strain on its capacity without increased funding and staffing, especially if done on a large scale. OSHA and its state partners have about 1,850 inspectors responsible for the health and safety of some 130 million workers, according to the government.
“OSHA is not staffed to, nor is it their legal role to, go in and audit every company, private business, in the country over the next few months to make sure they’ve issued a mandate,” Dan Bowling, a senior lecturing fellow at Duke University, told the Washington Examiner.
Bowling said there are both legal and practical obstacles in implementing and complying with the executive order.
“The devil is in the details, and we haven’t seen the details,” Bowling said, adding that he doesn’t think the details of this plan have even been fully developed yet.
Frank Cania, the president and founder of HR Compliance Experts, said that another unknown is whether the new mandate will cover all employees at a company with an excess of 100 workers or just those in that company who are expected to report to a physical work site.
Many companies operated with remote employees prior to the pandemic, and many more now do all their work online. How the mandate will pertain to those workers is a major question.
The case could be made that the mandate would be unfair to remote workers because it is intended to address crowded workplaces where one might catch or spread the coronavirus, but proponents argue that the ultimate goal, even beyond the business world alone, is to increase the country’s overall percentage of vaccinated people.
Demaree said she isn’t sure about scenarios involving remote workers because it hasn’t been addressed by the administration or by OSHA but said there may be more clarity once the agency releases further details.
Companies that don’t comply with the rules can reportedly face fines in excess of $13,000 per violation, and because there isn’t a framework for employers to track and report violations, OSHA will likely have to rely on the employees of businesses to report violations , according to the Wall Street Journal.
Cania, who told the Washington Examiner he has also received a flurry of calls since Biden’s announcement, said some businesses might have a vocal contingent of unvaccinated employees who become upset at the company and begin criticizing it on social media for mandating vaccines.
And while the denunciations might be a headache for employers, there is not much they can do about it, because it would likely be protected speech under the National Labor Relations Act.
Another challenge with implementation and compliance is the issue of unions. That battle is already playing out across the country. While the National Education Association, the largest union in the country, expressed its support for mandatory vaccines, other unions such as the Federal Law Enforcement Officers Association have pushed back on the notion.
On the government side of the equation, the biggest hurdle for the administration in implementing and enforcing the new mandate is the prospect of legal challenges. Additionally, some Republican governors have already said they have no desire or intention to help enforce the edict.
Biden responded to Republican claims that the mandate is an example of federal “overreach” on Friday by saying, “Have at it ,” indicating his administration is willing to do battle with red states that oppose the order.
The U.S. Chamber of Commerce, the world’s largest business federation, did not express support or opposition to the executive order when contacted by the Washington Examiner on Friday.
“The Chamber will carefully review the details of the executive orders and associated regulations and will work to ensure that employers have the resources, guidance, and flexibility necessary to ensure the safety of their employees and customers and comply with public health requirements,” it said in a statement.
Author: Zachary Halaschak
Source: Washington Examiner: Biden vaccine mandate leaves companies scrambling to figure out how to comply