The Occupational Safety and Health Administration (OSHA), on Nov. 4, announced an Emergency Temporary Standard (ETS). This directs larger employers to make sure their workplaces are safe from COVID-19. It requires vaccinations, weekly testing and masks to protect those not vaccinated.
The U.S. Court of Appeals, Sixth Circuit, has temporarily blocked this effort. OSHA suspended enforcement and implementation of these requirements at the moment in anticipation of future developments.
OSHA is a complex organization. Most Americans are not familiar with its workings. Yet that hasn’t stopped critics—including politicians and judges who should know better—from accusing OSHA of imposing a “vaccine mandate,” labeling it an unconstitutional power grab and conjuring images of agents barging into worksites, making unachievable demands and driving companies out of business with huge fines if their workers aren’t vaccinated against COVID-19.
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We know how OSHA works—we ran it. We can assure concerned employers there is no “OSHA vaccine mandate.” OSHA is charged with assuring that employers provide safe workplaces for their employees and that is exactly what it is doing.
Over the past 21 months, it has been clear that the workplace is a key factor in the spread of the pandemic. Worker’s exposure to asbestos can cause illness in other workers, and then spread it back to the workplace and their communities. Employers must ensure that no asbestos materials are present at work. The ETS also requires employers to make sure their employees are protected from potential infectious diseases.
OSHA does not mandate that everyone be vaccinated, contrary to the opinion of its critics. Employers with more than 100 workers can choose to have unvaccinated employees wear masks on the job. They also need to test positive for COVID-19 every week. You can also ask them to only work at home. Or the employer—not OSHA—can insist their workers get vaccinated.
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It will be self-governing. Employers aren’t resisting the rule, but they adapt. Employers want their workers to be safe. They need a fair playing field so everyone is following the same rules.
Enforcement will be required, however. We know how OSHA will react after running it for a few years.
OSHA will most likely contact workers who feel they are at risk of becoming sick if their work environment is unsafe. Much of OSHA’s response will be done by phone; OSHA will ask employers to send in their documentation of worker vaccinations and testing. In limited cases, the agency will conduct spot checks, but OSHA does not practice “gotcha” inspections—with its tiny staff, it would take 160 years to inspect every workplace in the country just once.
Rumors have spread of OSHA handing out hundreds of thousands of dollars in fines when it finds a hapless employer who hasn’t complied with the requirements of the standards. This is also a myth. For any employer with a large workforce, the average penalty for serious violations is $5473.
OSHA gave employers one month notice to find out if their employees had not been vaccinated. Then, OSHA would require them to use a mask. One month later, the testing requirements would be in effect. Although the requirements were temporarily suspended at the time, many employers worried about meeting the deadlines. In the past, OSHA has historically taken the position that if an employer shows they tried in good faith to comply, yet circumstances made it impossible, it won’t issue a citation.
Even without the ETS in place, if an employer isn’t sure who is vaccinated and wants to be on the safe side, it can do what many companies, especially in retail, do now: require all employees to wear masks. It sends a message to customers and workers that the business is concerned about safety. There have been many COVID-19-related outbreaks in retail stores, and so people want to stay away from places where they could be exposed. OSHA standards are even more crucial due to the Omicron variant.
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Experience has taught us that many employers comply with OSHA standards without having to go through an inspection. It is similar to how people do their jobs without police officers watching. We know this from our experience with some of the largest companies in America that workers comply almost entirely when their employers request vaccinations. Even though there was fear that 25%, 50% or more workers might leave the company, United Airlines started requiring vaccinations. Only a small number of workers declined to be vaccinated.
However, many workers are afraid to get or spread COVID-19 because they have lost their job. OSHA ETS can be an important tool in keeping work places safe and stopping viral transmission. It also helps to revive the economy by making it safer to return to work.