Last month the Biden administration proposed rules to require companies with more than 100 employees to mandate vaccines or require weekly covid testing.  The rules could impact two-thirds of private sector workers.  Billboard Insider talked with Formetco Safety Director Jim Poage  to get his insight on how this enforcement may take place.

I hear Covid is on OSHA’s radar?

Actually it has been for a while, but mainly in the healthcare and meatpacking industry. They are just now starting to look into enforcement in other industries including out of home.

When might the vaccination/testing rules go into effect?

This is really an unknown. It could be as soon as tomorrow with an executive mandate to enforce through the use of osha citations, or it may have been just saber rattling to try to see how many employers would do this on their own to try to be ahead of the game. At this point in time it’s really a guessing game.

How might the Biden administration enforce vaccine requirements on employers of with more than 100 employees.

You must  look at the structure that OSHA uses for regulation. This structure is in the form of two different types of OSHA, that of federal agencies, and state agencies. In the US there are 26 states that are classified as state plans. As a state plan they apply for a charter to create and enforce their own state safety program. The requirements of the state programs are that they will be overseen by the federal OSHA, as well as having state programs will be as strict if not stricter than the federal ones. If the states fail to meet these requirements, all federal funding can be pulled, and the federal OSHA can step in and enforce their requirements on employers in that state.

So the state plans can actually have their authority removed and the state employers can be overseen by the federal OSHA offices?

Yes, that is correct. The catch here with a federal mandate is that the state safety programs not only report to federal OSHA, but they also report to the governor of their state. If the governor was to formally reject the federal mandate for employee vaccination, then the state OSHA plan would quite likely refuse to enforce the workplace requirements that have been previously described. This would cause the state to lose its federal funding and charter rights, and then cause the federal OSHA to step in and enforce the vaccination requirements through citations at their level.

If the state were to lose its approval for their state safety program, would they be able to get it back in the future?

That’s where we are currently in uncharted waters. Something of a full rejection like this has never occurred in the past so it would be difficult to know if they would be able to reapply or if it would be a permanent rejection of the state rights to have a safety program.

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