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As Biden's vaccinate-or-test mandate approaches, questions arise over enforcement

The Occupational Safety and Health Administration was already a strained agency before the president announced the new requirement.

President Joe Biden says his sweeping Covid-19 vaccination and testing mandate will boost the economy and save lives, but as businesses prepare for the new requirement, they’re wondering not only what will be in the regulation, but how it will be enforced.

The mandate, which will apply to organizations with at least 100 employees and cover an estimated 80 million workers, has already drawn threats of lawsuits from two dozen Republican attorneys general and prompted some people to vow to quit their jobs. But a greater challenge for the administration could lie within the agency tasked with ensuring compliance.

The Occupational Safety and Health Administration was already handling a broad mission prior to the new rule, which it is expected to issue in a matter of weeks. To stretch its resources, the agency typically prioritizes high-risk industries and targets repeat offenders, and it offers help, in addition to issuing fines, to businesses that are out of compliance.

But OSHA had only about 862 inspectors in early 2020, according to a Freedom of Information Act response from the agency obtained by NBC News, to carry out all of its regulatory enforcement duties — and that number has trended downward over the last several years. This year, despite new hires, the agency lost another 65 inspectors, according to data obtained from OSHA.

Experts say the agency’s small size relative to its responsibilities means it can’t enforce the rule by deploying a large number of inspectors. While OSHA is now hiring, training takes time. David Michaels, who ran OSHA for seven years, said he doesn’t “think those new inspectors will be out in the field anytime soon.”

OSHA’s legacy as a strained agency means there won’t be an “army of inspectors knocking on doors,” former OSHA senior policy adviser Debbie Berkowitz said.

“It would take 160 years for OSHA to get into every workplace just once,” she estimated. “It’s an understaffed, under-resourced agency to begin with.”

Michaels, who is familiar with the internal deliberations on the rule, expects most companies to comply without the government intervening. “It isn’t a vaccine mandate” specifically, he noted, but rather a requirement to take measures to keep the workplace safe from the hazard of infectious workers.

OSHA “is going to tell employers they have to make sure that potentially infectious workers don’t enter the workplace, and they can do that a number of different ways,” Michaels said. That includes regular testing and close tracking of worker compliance by businesses, or even work-from-home requirements, he said.

“In the last week, I’ve spoken with hundreds of business leaders, and the question they ask me is not how will OSHA enforce this. The question is, what do I need to do to comply?” Michaels said.

Naming and shaming

If businesses don’t abide by the regulation, OSHA will “have a lot of levers,” Michaels said. “They can impose heavy fines, publicize to workers that they can complain if their employer is not complying, and they can do spot inspections.”

If a business is making a good-faith effort, Berkowitz said she expects OSHA will not force the issue with a fine.

But a key aspect of enforcing this requirement, differentiating it from some other OSHA regulations, will be the reaction of employees at risk of catching Covid in the workplace, who will serve as a force multiplier, experts say.

“The vast majority of employees want everybody to be vaccinated,” said Lawrence Gostin, a professor of public health at Johns Hopkins University. “It’s only a small but vocal minority who don’t. What you have to do is capture the attention of the silent majority and have them blow the whistle on any employer.”

“Encouraging whistleblowing is an extraordinarily important part of it,” he said, adding that OSHA “doesn’t have to set foot inside most employers.”

For the minority of businesses that don’t comply, OSHA could publicize the consequences.

“They’ll send out inspectors, and they may find workplaces where they haven’t done that,” Gostin said, referring to compliance with the vaccination and testing requirement. “And they’ll issue big fines, and they’ll issue press releases perhaps, which will embarrass some employers” while sending a message to others.

The upcoming rule is also different from others in that it’s “so politically polarized,” said Matthew Johnson, a labor economist at Duke University's Sanford School of Public Policy. “It’s pretty likely many companies will comply without having to do anything.”

Johnson said his research shows the negative publicity companies receive when OSHA publicizes that they’re not complying with health and safety regulations is “pretty effective.”

Still, in parts of the country where Covid-related restrictions are unpopular, the vaccination rule could be met with resistance from government officials, businesses and the public, he said. More than 20 states have workplace safety agencies that cover both the public and private sectors, and some of those agencies occasionally balk at federal rules, Berkowitz noted.

What’s more, relying on whistleblowers in those areas could be problematic. Many workers don’t know how to file OSHA complaints and could fear retaliation for doing so, Johnson said. Those dynamics make it likely that the agency will prioritize industries with low vaccination rates, such as meatpacking or construction, and possibly certain regions, he said.

Business concerns

Once OSHA releases the draft rule, a brief public comment period is likely to follow, allowing businesses to express their skepticism and suggest changes, Michaels said.

One issue for companies could be the cost of weekly testing and record-keeping for workers who refuse to be vaccinated, which Gostin said might drive businesses to simply mandate vaccinations by “default.”

Lex Taylor, who runs a group of companies based in Louisville, Mississippi, that make heavy industrial equipment like forklifts and generators, called the new rule “a toughie,” saying it’s unclear how often he’ll have to test those of his 1,300 workers who refuse the vaccination. Even after offering an extra vacation day to get vaccinated, just 30 percent of his workforce has gotten the shot so far, he said.

Given labor shortages, Taylor said he is not in a position to mandate the vaccination and risk losing employees. “That's just impossible,” he said, emphasizing the hole in his workforce that would create given the number of his workers who still aren’t vaccinated. “Logic dictates that's irresponsible. That's crazy.”

That means he'll have to devise a testing protocol. But the limited supply of at-home Covid tests could make it hard to purchase them in bulk and cheaply, he said, adding, “If we have to have a negative test result before the employee can show up to work, it's really going to be an administrative nightmare.”

In response to the shortages, the White House has pledged to ramp up the purchase of the tests for distribution to the public.

Scott Waller, president of the Mississippi Economic Council, said his organization has promoted vaccinations, but member businesses are confused about how to prepare for the vaccine-rule rollout.

“The idea sounds great, but what are some of the unintended consequences?” Waller asked.

For instance, the rule is likely to apply even to chains with a total of 100 employees at their various stores, according to Michaels.

“That makes it much more difficult,” Waller said, noting it would be more challenging for management to keep track of compliance at multiple locations.

While businesses largely support getting employees vaccinated, they worry a requirement could cause employees to quit at a time when many companies are facing shortages of workers, Waller said. In Michigan, Henry Ford Health System announced Tuesday that 400 employees had quit over the system’s vaccine mandate. Still, that's only about 1 percent of the health system’s workforce.

White House push

The White House says the evidence supports the effectiveness of mandates. It released a report Thursday asserting that vaccination requirements in many organizations have helped push their employee vaccination rates to more than 90 percent — a “substantially higher” rate than the 63 percent of the working-age population who are fully vaccinated.

Biden implored companies not to wait for the requirement to go into effect.

"My message is, require your employees to get vaccinated,” he said in remarks Thursday. “With vaccinations, we're going to beat this pandemic finally. Without them, we face endless months of chaos in our hospitals, damage to our economy and anxiety in our schools and empty restaurants and much less commerce."

While as many as half of unvaccinated workers have said in polls that they would leave their jobs rather than be forced to get vaccinated, anecdotal evidence suggests the number who do quit could be much smaller.

Meanwhile, OSHA was given a boost in the Covid relief bill that Biden signed in March, which set aside $100 million for inspectors, a whistleblower program and health and safety grants, according to the Department of Labor — all elements of the agency’s enforcement efforts.

“OSHA should be emphasizing that it will rigorously enforce the law, that it will devote high resources to inspections and enforcement, and that it will be publicizing widely that employees should blow the whistle on employers who don’t follow OSHA standards,” Gostin said.

“That combination will have a strong impact,” he said.