OSHA faces big challenge with Biden vaccine mandate

President Biden will be relying heavily on a small division of the Labor Department to implement his new vaccine mandate for the private sector, posing perhaps the biggest test for an office that has faced funding and personnel challenges in recent years.

The Occupational Safety and Health Administration (OSHA), largely understaffed during the Trump administration, is now tasked with crafting Biden’s emergency rule on COVID-19 vaccines and testing that will apply to companies with at least 100 employees.

The high-profile role is likely to make OSHA a target of attacks from many Republicans and those in the business community who view the mandate as government overreach.

“OSHA’s never been a beloved agency for Republicans. They’ve always gone after OSHA for interfering with corporate autonomy,” said Jordan Barab, former OSHA deputy assistant secretary in the Obama administration.

At the end of the Trump administration, the agency had 862 federal inspectors, almost 100 less than at the end of the previous two administrations, according to figures compiled by the National Employment Law Project.

“This president inherited sort of a hollowed-out agency,” said Debbie Berkowitz, chief of staff and senior policy adviser for OSHA during the Obama administration.

“The last administration and the Republicans in Congress made sure that the OSHA budget did not go up but salaries go up and other costs go up, which means they had less money to keep the current staff, so when people left they couldn’t fill positions.”

Funding for OSHA established during the Trump administration stands at nearly $591.8 million. Biden has requested $664.6 million for the agency, starting Oct. 1, while House Democrats are seeking $692 million. Lawmakers have yet to agree on government funding levels for the next fiscal year.

OSHA is expected to craft the vaccine mandate in the coming weeks, leaving an equal amount of time for questions to swirl over exactly what kind of requirements will be imposed on employers and their workers.

The Consumer Brands Association, whose members include Coca-Cola and General Mills, urged Biden on Monday to clarify how the new plan will work, including what is considered documentation for proof of vaccination and if the government has a plan to centralize vaccination tracking.

A spokesperson for OSHA did not respond to The Hill’s request for comment on Tuesday.

White House press secretary Jen Psaki told reporters last week that the White House expects more companies to require vaccines while OSHA is in the rulemaking process.

“Certainly this will be up to a number of private-sector companies. Our expectation and hope is they will take these steps on their own, and then we will continue to implement for those who are not complying,” she said.

Berkowitz noted that employers usually follow forthcoming rules following an announcement like the president’s last week.

“What we always found with OSHA standards is when employers know it’s coming, they start complying. I would say the majority of employers do that. And then there are, and there could be many of them — which is why OSHA exists to do enforcement — who say ‘I’m not following any rules here, I’m doing my own thing,’ ” she said.

OSHA does not have nearly enough staff to inspect the vast majority of workplaces for compliance with the forthcoming vaccination mandate.

But some experts say they wouldn’t need to, given the steps taken by many of the nation’s biggest employers on mandating vaccinations for employees.

Some large employers, including United Airlines, Tyson Foods and CVS Health, have already announced vaccine requirements for employees. 

Others, experts say, are likely to follow suit now that Biden has announced the mandates.

“To the extent they were hesitant to do it because of the controversy, they can now blame it on OSHA,” Barab said.

The U.S. Chamber of Commerce and Business Roundtable — two of the biggest lobbying groups for corporate America — said they are not opposed to the Biden administration’s vaccine requirement.

The politics around the mandate, however, are still expected to put OSHA in the crosshairs of Republican officials who have vowed to oppose the new requirements.

Georgia Gov. Brian Kemp (R), Arizona Gov. Doug Ducey (R) and South Dakota Gov. Kristi Noem (R) have threatened to take Biden to court over requiring workers to get vaccinated, while congressional Republicans like House Minority Leader Kevin McCarthy (Calif.) and House Minority Whip Steve Scalise (La.) are arguing people shouldn’t be coerced into vaccines and warning against government control.

Biden’s rule is expected to be rolled out by OSHA within the next month, and the agency will publish an Emergency Temporary Standard (ETS) to enact the mandate. It is expected to affect around 80 million workers, and businesses that fail to comply could face fines of up to $14,000 per violation.

OSHA can authorize an emergency standard if it determines workers are in grave danger, and a standard can only be challenged in a U.S. court of appeals. OSHA guidance, meanwhile, allows for flexibility and lets administration officials change it as they see fit.

Psaki cited the Occupational Safety and Health Act of 1970 when asked last week about what type of legal analysis was done before the president’s announcement.

“The Department of Labor is proceeding under that law. And the law basically requires the Department of Labor take action when it finds grave risk to workers. And certainly a pandemic that killed more than 600,000 people qualifies as ‘grave risk to workers,’ ” she said. “And so, if the [Labor] secretary determines workers are in grave danger, he has an obligation to issue an emergency temporary standard. That’s exactly what he did.”

Labor experts say the administration should be able to withstand any legal challenges over the rule.

“I think they should be on pretty good legal ground, I think they’ve done a lot of the work already,” said Barab, the former OSHA official, who took issue with the 100-employee threshold for Biden’s rule.

He argued it was unprecedented in the history of OSHA to have a small-business exemption.

“This is limited to companies with 100 employees or over, which I think is unjustified and unfounded scientifically,” he said. “It’s catering to the small-business community. They wanted to limit some of the small-business fallout of this, but I think it was ill-advised.”