How will COVID vaccine mandate be enforced — and what happens if you don’t comply?
When President Joe Biden announced a federal COVID-19 vaccine and testing requirement for companies with 100 or more employees, legal experts had their concerns.
Chief among them was how the historically underfunded and understaffed federal agency tasked with drafting the rule — the Occupational Safety and Health Administration, or OSHA — could enforce it. An estimated 84 million workers will be affected, government officials have said.
OSHA didn’t address enforcement or penalties when it issued the nearly 500-page emergency temporary standard on Nov. 4.
But a workplace safety lawyer and former OSHA official said that’s not to say there isn’t a plan in place — or a wide range of penalties on the table for businesses that don’t comply.
How will OSHA enforce vaccine, testing mandate?
Under the new requirement, employers with more than 100 employees must develop and enforce a policy mandating all workers get vaccinated against the coronavirus.
Employers can also elect to implement a weekly testing requirement for unvaccinated workers, who will have to wear masks in the workplace, OSHA said.
A federal appellate court temporarily halted the requirement over the weekend after dozens of states filed legal challenges, CBS news reported. Legal experts have said those challenges are likely to move quick, with the opportunity for the U.S. Supreme Court to weigh in if the appellate courts issue conflicting rulings.
If the OSHA requirement stands, White House officials said workers will have until Jan. 4 to get fully vaccinated (not including booster shots) or submit to regular testing. The rule then stays in effect for six months, OSHA said.
Jordan Barab, former deputy assistant secretary of OSHA from 2009 to 2017, said the requirement covers more workers and workplaces than any previous standard issued by the federal agency, which he said employs less than 2,000 inspectors.
Statistics have shown it would take OSHA 165 years to inspect every work place just once, Barab said.
“On one hand it won’t be a major problem — except that all enforcement is a major problem because it’s a tiny agency compared to the huge mandate it has,” he told McClatchy News.
Still, Barab said the vaccine and testing rule will be a “pretty easy” standard to enforce.
He said OSHA inspectors can verify whether a company or business is in compliance with the vaccine and testing standard any time they’re in the workplace for a routine inspection, such as checking on machine guarding or fall protection. They can ask for the written policy as well as employee vaccination and testing records, which each company is required to keep under the emergency standard.
“That should cover a lot of enforcement,” he said.
OSHA will also conduct inspections — either in person or remote — if an employee files a complaint. The remote inspections are fairly simple, Barab said, as an inspector can call up an employer and ask for proof of compliance. The company will either provide it or not, and an inspector can determine next steps from there.
What fines do companies face?
There is no separate category of enforcement for emergency temporary standards, said Travis Vance, co-chair of the Workplace Safety and Catastrophe Practice Group at the national law firm Fisher Phillips.
That means companies that are not in compliance face fines of up to $13,653 for a serious violation or $136,532 for a willful violation.
Barab said there is some flexibility when it comes to penalties. For small violations, some employers will correct it while an inspector is present to avoid a citation. And while the maximum penalty for a serious violation is close to $14,000, he said the agency is more likely to issue fines in the neighborhood of $2,000 to $4,000.
But if an inspector confronts a business owner who doesn’t like the government’s rule and acknowledges to knowing about the emergency temporary standard but not enacting it, OSHA can issue a willful violation, Vance said.
OSHA can also decide whether to issue a single penalty or an instance-by-instance violation.
“They can theoretically issue a $13,653 citation times 150 for each employee there,” Barab told McClatchy News. “There are ways for OSHA to issue larger penalties in certain egregious but generally rare situations.”
Vance said there is also a deduction for the size of the employer and an equation OSHA follows when it comes to determining penalties.
As Barab said, “If it’s just a hole in the program, it won’t be much. (But) if they’ve blown the whole thing off, it’ll be more.”
Bill would increase OSHA fines
Congress is looking to make an example out of bad actors when it comes to workplace health and safety, Vance told McClatchy News. Barab said that’s in part because the current fine structure is so low that “even a fairly large penalty will have no impact on a large corporation.”
That could change under a proposal in House Democrats’ reconciliation package.
According to Fisher Phillips, the bill includes a proposal to increase the maximum penalty for a serious violation from $13,653 to $70,000. It would also increase the fine for willful or repeat violations from $136,532 to $700,000.
“By increasing these by 10 times, it increases the possibility OSHA penalties will actually have an impact for all sizes of employers,” Barab said.
Whether the proposal will get congressional approval remains to be seen. But the proposed fine increases were included in an iteration of the bill at the end of October, Bloomberg Law reported.
This story was originally published November 8, 2021 at 3:11 PM with the headline "How will COVID vaccine mandate be enforced — and what happens if you don’t comply?."
