Vax mandate 'work-around' using OSHA not nearly as clever as they thought

The plan to force Americans into receiving an experimental drug that acts on their RNA faced some big obstacles, including  Joe Biden's promise that he wouldn't do it; decades of Democrats' rhetoric over "my body, my choice"; and the CDC's admission that it lacks the power to do so.

But Biden's chief of staff, Ron Klain [i], seems to think of himself as a pretty smart fellow, a guy who gets things done.  Maybe that's why he exulted over the approach the administration is taking to force Americans to inject the experimental gene therapy into their bodies.  He retweeted MSNBC's Stephanie Ruehl, saying, "OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations."

"Work-around" has such a nice bureaucratic insider ring to it.  It bespeaks a command of the intricacies of government, the details of rules, regulations, and precedents, and a mastery of the incredibly complex organization.

But it turns out that "working around" by piling responsibilities on OSHA (The Occupational Safety and Health Administration), part of the Department of Labor, overlooked a small problem: OSHA is incapable of handling the responsibility.  From Politico:

"I think this redefines 'ideas are simple, execution is hard,'" said attorney Michael Lotito, who represents businesses for law firm Littler Mendelson.

"What we have right now is chaos," Lotito added, "because of the unintended consequences of making such an announcement where there is no clarity with respect to a gargantuan number of questions that have been left open."

The open questions include such issues as who will pay for the weekly COVID tests for people working for private companies with more than 100 employees, who have the testing option if they decline the vaccine.  These tests are not cheap, and employees may have to take 50 or more of them every year.

"It's millions of dollars a year to any size company. I've seen companies do it before Biden issued his order and it's incredibly burdensome and time consuming and may not even guarantee health and safety in the way that mandating vaccines would," Schaefer [an employment lawyer at Loeb and Loeb] said.

But even more fundamentally, OSHA is, by the standards of the federal government, a tiny agency.  Even worse, when President Trump streamlined the regulatory burden on employers, resulting in the economic boom of his presidency, OSHA's headcount declined, as departing workers were not replaced.  There simply aren't enough bureaucrats to go around, given the enormous new tasks.  Business Insider, which seems to think this is a tragedy, writes:

[B]efore the first legal challenges against the mandate roll in, the Biden administration faces the more immediate conundrum of whether the chronically resource-strapped Occupational Safety and Health Administration (OSHA) is up to the task of enforcing it.

The agency's challenge comes at a particularly inopportune time: It's reeling from deep staffing cuts under the Trump administration, and its fines are relatively low and often fought out in long court battles, two experts told Insider.

Bryan Shepardson of Reuters adds:

With more than 80 million workers covered, "OSHA won't be able to police every employer," said A. Scott Hecker, a labor lawyer in Washington at Seyfarth Shaw. OSHA plans to publish an Emergency Temporary Standard (ETS) to enact the new requirements, the White House said Friday. That measure, which is used to accelerate urgent rules, has only been used 10 times in OSHA's 50-year history. Courts have invalidated or halted four of those rules and partially blocked one, according to the Congressional Research Service. (snip)

OSHA now has an estimated 800 safety and compliance inspectors to cover the more than 100,000 private-sector companies affected by the new rule. (snip)

In addition, the agency has largely failed to hold employers accountable for unsafe conditions during the pandemic, Reuters reported earlier this year, identifying dozens of workplaces where employees complained of slipshod pandemic safety. Regulators never inspected the facilities or, in some cases, took months to do so.

Two-thirds of employers cited by OSHA for COVID-19 safety violations had not paid fines, and more than half appealed the OSHA citations.

There are many avenues for legal challenges to the mandate, including the question of whether an illness with a 99%+ recovery rate for anyone of working age constitutes an "emergency" sufficient to cancel the "right" to "privacy" that the SCOTUS proclaimed resided in the penumbra of the Constitution.

Find the right federal judge(s), and the mandate can be tied up for years in the courts.

As the lawyer quoted above said, "ideas are simple, execution is hard."


[i] Kalin may or may not be the real president, the one with the power to pull the plug on the POTUS's video feed mid-sentence when he strays off-topic or into incoherence, the guy that Biden fears he will "get in trouble" with if he speaks on certain topics.  

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