The federal mandate will be enacted through the Occupational Safety and Health Administration (OSHA), a federal agency within the Department of Labor. (Photo by Karen Ducey/Getty Images)
As more than 4,600 New Jersey businesses prepare to face President Biden’s sweeping vaccine mandate, employers and their staff are questioning how the directive will work.
Who foots the bill for weekly testing? What happens if someone produces a fake vaccine card? What gives the federal government the power to issue this kind of order?
A lot of questions have yet to be answered on the rules, which are set for release Friday, Sept. 24. When asked for comment on how they will be enforced in New Jersey, the state Department of Labor referred all questions to a local Occupational Safety and Health Administration (OSHA) office. A spokeswoman for New Jersey’s OSHA office did not answer questions, but pointed to the state’s OSHA website and the White House’s plan.
Under all OSHA requirements, employers are expected to be compliant with federal rules because companies must provide safe workplaces, according to Stacy Hawkins, labor lawyer and law professor at Rutgers University’s Camden campus.
It’s possible the federal agency sets up a hotline for COVID-19 complaints, or the 29 states where OSHA has jurisdiction could handle some investigations. But Hawkins said she does not foresee a situation where federal workers walk into businesses demanding to see vaccine cards or negative test results.
“It’s a mandate imposed on employers to require workers be vaccinated and tested. It’s going to be OSHA going to individual employers and say, ‘Show me the process you have to comply with this mandate to require vaccines or mandate workers to weekly testing. Those people with an accommodation, show me your protocol for testing them,’” Hawkins said.
She added, “Every employer has a duty to provide a safe workplace without known hazards.”
Biden announced the mandate Sept. 9 while expressing weariness with the pace of the nation’s vaccination rate. About 55% of the U.S. population is fully vaccinated, up from 49% at the end of July.
The state Department of Labor said this week the mandate affects 4,646 businesses in the Garden State.
Millions of arms have been already jabbed with Pfizer, Moderna, or Johnson & Johnson shots in New Jersey, but there’s no way to tell how many employees of those businesses are unvaccinated. There’s no centralized system, statewide or federally, keeping track of who received the vaccine in the last nine months.
Nationwide about 80 million Americans fall under the mandate, not including another 17 million workers at health care facilities receiving Medicare or Medicaid funds.
The rules will be enacted through OSHA, a federal agency within the Department of Labor, and expedited via an emergency temporary standard (ETS), powered by a law passed in 1970. The ETS allows the measure to be instated for six months before needing to be replaced with more permanent rules.
The mandate is already facing threats of legal challenges from business owners and Republican officials around the nation.
Hawkins noted that since the pandemic has led to outbreaks in workplaces and exposes workers to risky situations, “the Biden administration has determined that COVID presents a hazard and a safety concern in American workplaces.”
The administration’s policy justification, she said, is the current state of emergency.
“Once we impose this mandate and reach herd immunity, the ‘emergency’ will subside and the pandemic will be over. The argument, then, that it’s an emergency will become much more tenuous,” she said.
Enforcement and legality
OSHA is notoriously understaffed — it employs only 1,850 inspectors nationally — which means it prioritizes how and when to investigate a business.
Hawkins said there are typically three things that would spark a closer look: a reported incident, a complaint, or what OSHA calls a programmed inspection.
If an incident is reported at a workplace, that means there’s been a violation of providing a workplace without hazards through reasonable precautions, Hawkins said. When there were outbreaks at a California poultry plant, resulting in nearly 20% of workers testing positive for Covid and nine deaths, OSHA investigated the employers and found workers were lined shoulder-to-shoulder.
Complaints also prompt an OSHA investigation, like after Amazon workers complained of having no time for regular hand washing and a lack of mask enforcement. At a Carteret fulfillment center, more than 30 employees tested positive.
And during a pandemic, the agency can target inspections in higher-risk industries, like health care settings and nursing homes, Hawkins added.
Under the ETS, employers in violation could be fined nearly $14,000.
Any company that announces it won’t comply with the mandate is “putting a target on their back for OSHA inspection and fines,” Hawkins said.
Some businesses might wait to see how legal fights play out. It has the potential to reach the U.S. Supreme Court. Hawkins didn’t speculate on how the conservative-leaning justices might rule — in August, the court refused to block Indiana University’s vaccine mandate — but she said critics could make arguments in the interests of businesses’ “economic liberty.”
Where NJ businesses stand
Some of New Jersey’s largest employers have already put vaccination requirements in place.
Rutgers University, where on-campus students are required to be vaccinated, requires employees to show proof of vaccination or partake in weekly testing. United Airlines, which has a hub at Newark Liberty International Airport and employs 14,000 New Jerseyans, requires vaccinations. New Brunswick-based Johnson & Johnson is mandating all employees be inoculated by Oct. 4.
Business groups, including the state Chamber of Commerce, have been wary to comment on whether the federal mandate goes too far before rules and regulations are released later this week. More than a dozen of New Jersey’s largest employers did not respond to comment for this story.
Still, employers pushed for their workers to get the vaccine prior to the mandate’s announcement. Amazon is offering $100 to newly vaccinated employees in Monroe, and Newark Airport has hosted vaccination clinics for its employees.
South Jersey-based Campbell Soup was among the companies that sent Biden a letter questioning the new vaccine mandate, according to CNN Business. Represented by trade group Consumer Brands Association, the companies asked about the consequences of falsifying vaccine status, whether exemptions for religious and medical reasons would be allowed, and whether requirements only apply to vaccines that are FDA-approved.
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