Challenges remain in meeting OSHA’s vaccine mandate

At some point over the next few weeks, lawyers from the Department of Labor will attempt to convince judges from the 6^th U.S. Circuit Court of Appeals that the Occupational Safety and Health Administration's vaccination and testing Emergency Temporary Standard is “feasible.” In so doing, they must demonstrate to the Court that employers can implement the ETS, including assessing and recording every employee's vaccination status.

As such, it's probably worth noting that Labor Department leaders were unable to complete this task for their own employees.

On September 9, President Biden tasked all federal agencies with ensuring that all their employees were vaccinated by November 22. Given over two months to accomplish the task, the Labor Department was able to, by its own accounting, ensure that 93 percent of its 15,338 employees were fully vaccinated. It granted another 5 percent of its workers a religious- or disability-based exemption to the mandate.

But what of the remaining 2 percent?

It seems Labor Department leaders — the same bureaucrats who authored the vaccine mandate — can’t determine the vaccination status for these approximately 300 employees. While this is evidently allowable under the Administration's rules for its own employees, private-sector employers are provided no such leeway under the ETS.

Every private-sector employer with over 100 employees would be forced to ascertain the status of 100 percent of its  employees, not 98 percent.

Moreover, if enhanced OSHA monetary penalties currently working their way through Congress were to be enacted, an employer that didn't know the vaccination status of 350 employees could be fined up to $140,000 per violation, or $49,000,000.

Fortunately for these 300 workers, the Biden Administration announced yesterday that they would face no disciplinary action for their non-compliance. If only private-sector employers could be so lucky.