On his first day as in the White House, Joe Biden signed an executive order giving OSHA broad power to regulate health and safety in the workplace, particularly regarding COVID-19. At the time, it was thought that OSHA would enforce face coverings in the workplace.

On Thursday, President Biden announced that companies with more than 100 employees are required to make certain that all employees are vaccinated or have a weekly negative COVID test. This broad power may indeed be unconstitutional, but OSHA is ideally suited to try to enforce the mandate.

Most people know that OSHA creates detailed rules governing workplaces. These rules have been enforced using intrusively detailed onsite inspections. A COVID vaccination rule under this model would be quite difficult to enforce in person.  However, the way OSHA enforces rules has changed.

OSHA now relies on detailed reports from employers rather than onsite inspections. Only if an employer has an increase in accidents or workplace illnesses, would OSHA look more closely at the operation. Problems such as deaths or serious injuries might generate an onsite inspection.  State OSHA departments do much of the actual onsite work in cooperation with federal OSHA.

This is a workable system. The correct incentives are in place for employers to keep accident rates low and eliminate serious events. If a company’s records and reports show good compliance, that company would be left alone. Employee whistleblowers can cause problems, but the first enforcement action may be a request for records.

The vaccine mandate simply creates a new reporting requirement. In larger companies, one person usually handles reporting everything that OSHA requests. Companies already report accidents, injuries, incidents, emergency room visits, and such. There is cross-reporting as doctors and hospitals are required to ask if an injury is work-related. For vaccinations, OSHA will simply ask for more information.  The forms could be simple:

• How many statutory employees do you have? How many are vaccinated? Do you have documentation of vaccination status for all vaccinated employees? For all unvaccinated employees, do you have the required exemption documentation and record of COVID testing on file?
• COVID vaccination records including unvaccinated employees are to be maintained for five years.
• You can find additional information and instructions on the Department of Labor website.

To the OSHA compliance officer in a company, it is just another form of compiled data in the record. Compliance officers even keep basic records for contractors. Contractors are required to report their accident and injury summation to the safety officer. Contractors may be asked about their vaccination status as well.

The penalties for non-compliance are severe. Most companies will readily comply rather than risk OSHA’s wrath. OSHA compliance is not that hard as long as the company fills out the forms and the numbers add up. Large employers know the game and have detailed and effective safety programs. Work safely and OSHA is happy.

Vaccine mandates change the game. Although the form changes are simple, as a practice matter, vaccines are very different from other workplace hazards. A vaccine does not protect employees from hazards or illnesses that may be the result of processes within the workplace. There is no specific inspection or test that can be initiated except to demand that every employee submit to the vaccination and show proof.  It is a different sort of regulation.

OSHA is required to develop detailed regulations for anything that can generate an enforcement action. The regulations must comply with the law and court rulings, including constitutional tests. There is a strong possibility that enforceable regulations cannot be written within the law. If OSHA tries to enforce poorly written or illegal regulations, the courts may deny OSHA the power to enforce the regulations.

Employees may resist. Employees may challenge the mandates in court or through unions. It is anyone’s guess if these challenges might be successful.

Finally, the states may have a say. The current way that OSHA does compliance depends on the states to do the onsite inspections and other details. If the state OSHA slow walks enforcement or refuses to cooperate, the whole scheme will fail.

That may be the way the governors are moving. Several states have declared that they will fight the regulations. They can most easily do this by removing the authority of the state OSHA to work cooperatively with OSHA.  They can also protect employees from having to reveal vaccination status to employers.

This is not a done deal by any means. However, do not expect the employers to be helpful. They will decide that they cannot risk the danger to operations that an aggressive OSHA can create.

Image: Ron Klain’s retweet admitting that OSHA is a workaround. Twitter screen grab.

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