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Small agency, big job: Biden tasks OSHA with vaccine mandate

WASHINGTON (AP) — The Occupational Safety and Health Administration doesn’t make many headlines. Charged with keeping America’s workplaces safe, it usually busies itself with tasks such as setting and enforcing standards for goggles, hardhats and ladders.

But President Joe Biden this month threw the tiny Labor Department agency into the raging national debate over federal COVID-19 vaccine mandates. The president directed OSHA to write a rule requiring employers with at least 100 workers to force employees to get vaccinated or produce weekly test results showing they are virus free.

The assignment is sure to test an understaffed agency that has struggled to defend its authority in court. And the legal challenges to Biden’s vaccine mandate will be unrelenting: Republican governors and others call it an egregious example of government overreach. South Carolina Gov. Henry McMaster vowed to fight the mandate “to the gates of hell.”

“There are going to be some long days and nights for the folks who are drafting this rule,” says labor lawyer Aaron Gelb, a partner in the Chicago office of Conn Maciel Carey. “It’s an interesting time to be an OSHA lawyer for sure.”

When Congress created OSHA 50 years ago to police workplace safety, 38 workers were dying on the job every day. Now that figure is closer to 15 — even though the American workforce is has more than doubled. OSHA writes rules designed to protect workers from dangers such as toxic chemicals, rickety scaffolding and cave-ins at construction sites.

“The hazard in this case is the infectious worker,” says epidemiologist David Michaels, OSHA director in the Obama administration. “This rule will tell employers: You have to take steps to make sure potentially infectious workers don’t come into the workplace.”

OSHA will use its power under a 1970 law to issue an expedited rule — called an “emergency temporary standard” or ETS — and bypass its own cumbersome rulemaking process, which typically takes nearly eight years from beginning to end, according to a 2012 study by the Government Accountability Office. To fast-track the rule, OSHA must show that it is acting to protect workers from a “grave danger.”

The mandate the White House announced this month will cover 80 million employees — nearly two-thirds of the private sector workforce. Employers that don’t comply could face penalties of up to $13,600 per violation.

Businesses are anxious to see how OSHA handles questions like: Which vaccines and tests are acceptable and which aren’t? How should employers handle requests from employees who seek exemptions on medical or religious grounds? Who’s going to pay for the testing?

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