Democrats want significant increase in workplace fines and vaccine enforcement

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WASHINGTON – As courts rule on whether a COVD-19 vaccination requirement for 84 million workers can go into effect, Democrats continue efforts to dramatically increase fines for workplace safety violations and double the number of workers federal inspectors.

The broad set of Democratic social spending priorities that were passed by the House last week and are pending in the Senate would increase the maximum penalty to $ 70,000 for a serious workplace violation and to $ 700,000 for a violation. deliberate or repeated. The highest fines currently for these categories are $ 13,653 and $ 136,532.

A March coronavirus relief program included $ 100 million to hire 80 more compliance officers from the Occupational Safety and Health Administration, a start of President Joe Biden’s goal of having around 1 500 inspectors to be deployed by the end of its first mandate.

The increase in fines and inspectors was not prompted by the Biden administration’s attempt to demand that workers at large companies get vaccinated or be tested regularly. But the impact would be much greater due to the number of workplaces potentially affected by OSHA’s emergency vaccination rule.

“You associate this very sweeping directive with this attempt to put in place a historic and dramatic increase in penalties,” said Glenn Spencer of the United States Chamber of Commerce, who opposes the increase in fines. “I think the timing would be unfortunate.”

Democrats say current fine levels are too low to serve as an adequate deterrent. They are also much lower than those other federal agencies may impose for environmental or financial violations.

David Michaels, an epidemiologist at the George Washington University School of Public Health who led OSHA during the Obama administration, said the average fine for workplace safety is $ 5,473 for a serious violation.

“It can influence the behavior of a very small employer,” he said, “but it will not impact many medium or large employers. “

Where are the vaccine or mask requirements in the workplace?

OSHA cannot yet take any action to enforce the vaccination requirement for companies with 100 or more workers. The New Orleans-based United States Court of Appeals for the 5th Circuit prevented the rule from moving forward as challenges from conservative states and businesses continued.

The Labor Department wants to demand that unvaccinated workers wear a mask at work from December 5 and be tested for COVID-19 at least once a week from January 4, 2022.

Workplace safety attorney Robert Ayers, a partner at Holland & Hart, said he advises clients not to wait for legal challenges to be decided before starting to develop an implementation plan, as they could be faced with rapid turnaround times if the requirement survives.

If so, Ayers expects workers to complain to OSHA if their employer does not implement the standard.

“It is a sensitive and sensitive issue,” he said. “And when employees see people in their office who might not be wearing a mask if they are supposed to be, they’re very sensitive to that.”

The pandemic has prompted an increase in complaints to OSHA; inspectors at the lowest

As with other workplace rules, OSHA primarily expects to enforce the standard by responding to complaints.

Along with the COVID masking and vaccination requirements, there is an additional political element that creates a difficult dynamic for employers, said Mark Wilson, vice president of health and employment policy at HR Policy Association, which represents the human resources managers of more than 400 large companies.

“The last thing they want right now is something else that’s going to cause divisions in their workplaces,” he said. “And this question, unfortunately, is very polarizing in the country. “

Wilson and Ayers also said worker complaints could overwhelm already extremely busy inspectors.

“It’s a huge problem,” Ayers said.

The pandemic has dramatically increased the number of complaints OSHA receives from workers alleging retaliation for reporting violations, according to the Department of Labor’s internal watchdog.

“OSHA was challenged to complete investigations in a timely manner before the pandemic, and there is now the potential for even greater delays,” the Office of the Inspector General said in a report last year.

The number of OSHA inspectors is at an all-time low, Labor Secretary Marty Walsh told Congress this summer when he defended the administration’s request for additional funding.

Walsh said the $ 100 million included in the March US bailout will allow the department to restore inspectors to their level 35 years ago. The additional money requested in the 2022 budget would be the next step in Biden’s goal of doubling the number of inspectors over four years.

“I would like OSHA to get to a point where we are not responding to accidents on the jobsite, that we are really proactive, working with companies on how to create better working conditions and workplaces and more secure. “Walsh told a Senate supply subcommittee this summer.” We’re not there yet. “

The average business can expect an OSHA visit once every 134 years, said Sidney Shapiro, a law professor at Wake Forest who worked as an OSHA consultant.

OSHA prioritizes assigning inspectors to areas with the highest rates of injury or illness.

“And then for the rest,” Shapiro said, “they rely on the employees to contact them.”

Lawyer: Good faith efforts to follow the rules are unlikely to result in heavy penalties

When OSHA imposes fines, they are often settled for pennies on the dollars, he said, because the agency maintains that its job is not to raise money for the government but to bring in the wrongs. companies to come into compliance.

If workplace vaccination requirements go into effect, attorney Bob Lian said he would be surprised if OSHA came after a company that isn’t doing everything right.

“I think the goal here is to solve a public health crisis,” he said. “If employers make good faith efforts to comply… you probably aren’t going to drop the hammer on you. “

Lian, who heads Akin Gump’s work and employment practice, argues that the current level of fines is large enough to act as a deterrent. Raising fines as high as Democrats want, he said, will inspire employers to fight OSHA rather than fix the issues and move forward.

Ayers, the workplace safety attorney at Holland & Hart, said in addition to fines, companies already face other potentially significant costs for not following the rules. Accumulating too many quotes can disqualify them from future contracts. And troubleshooting can be costly if new equipment or other mitigation measures are needed.

Spencer of the US House sees a difference between the Democratic and Republican administration’s approach to OSHA. Republicans, he said, tend to emphasize outreach and incentive programs, while Democrats like to announce large fines as a way to “shame through press releases.” .

The possible increase in the maximum penalty to $ 700,000 fits that mold, he said.

“It won’t apply to everyone,” Spencer said. “But OSHA will use this potential fine as leverage to say, ‘Employers, we are suing you for a violation and you better work with us and you better succumb to whatever we tell you’, and use that as some sort of chip negotiation. “

Even if the Senate overcomes significant hurdles to approve the social spending package that includes increased fines, this provision may not stay in the bill.

Additionally, OSHA may not know for weeks whether it can enforce the vaccination rule.

Agency officials said they were confident the rule would survive legal challenge – and that they wouldn’t have to penalize the businesses most affected when it did.

“We know,” Acting OSHA Chief Jim Frederick told reporters when the rule was announced, “that the vast majority of workplaces will be compliant.”

Rule pending: 20 questions, answers on OSHA’s COVID-19 vaccine rules for workers

Rule pending: Federal Court of Appeals Blocks COVID-19 Vaccine or Testing Rule for Large Businesses

Maureen Groppe has covered Washington for nearly three decades and is now the White House correspondent for USA TODAY. Follow her on Twitter @mgroppe.

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