The Biden administration action last week designed to combat Covid has local large employers on alert.
The six-pronged national strategy is designed to maximize “every available tool” to combat Covid-19, the White House said Sept. 9. Big on broad vision, low on specifics at this point, the Department of Labor’s Occupational Safety and Health Administration will soon reveal specifics for a portion of the emergency rule. All employers with 100 or more people will be required to ensure their workforce is fully vaccinated or require any workers who aren’t to produce a negative test weekly or stay home.
The action will save more lives “while also keeping schools open and safe, and protecting our economy from lockdowns and damage,” the administration said.
"It is a mandate on employers at the risk of being inspected and cited by OSHA," said Phillip Russell, equity shareholder at Ogletree Deakins in Tampa. "It gives the government more teeth to compel some action."
He often represents and counsels employers about their compliance rights. An important question for him is about enforcement.
OSHA writes citations after inspections, and it can issue proposed penalties. Under the emergency standard, $14,000 fines are expected per violation. A reconciliation bill before Congress could multiply current penalties tenfold, Russell said.
Despite its mandate to inspect workplaces for safety and health, OSHA is limited in what it can do. It's often unclear to people that OSHA does not actually fine anyone. The Occupational Safety and Health Review Commission, an independent government agency, does. Think of it as the Supreme Court of OSHA violation disputes.
"It's the only agency that can actually affirm citations and determine whether OSHA got it right," Russell said.
Many cases are settled or negotiated before reaching that level. "A lot of employers just think that if they get a citation from the government, you just have to sign the dotted line and be done, and that's just not the case," he said.
Despite potential costs for testing and vaccines, some large employers welcomed the rules, especially ones in office environments.
"They seem to be interested in the cover that they get from, 'Oh, it's not us, it's the government.'"