When Workers Themselves Are A Workplace Hazard

By Stephen Massey, Co-Founder at Meteorite

Since the Biden administration announced its plan earlier this month requiring all employers with 100 or more workers to ensure that they be vaccinated or tested weekly for COVID-19, companies have asked a number of questions about the details: everything ranging from deadlines and how to verify vaccination status, to who would cover the cost of testing and how to handle workers who refuse to comply.

Employers are right to ask questions. They want to have the necessary procedures in place to keep their workplaces safe and get on with business. What’s more, they want to comply with the law. 

No one knows this better than Dr. David Michaels. From 2009 to 2017, he led the Occupational Safety and Health Administration (OSHA), making him the longest-serving head of the agency that will create and enforce the new vaccine-or-test requirement. He is an epidemiologist, now on the faculty at the George Washington University School of Public Health.

When I sat down with him last week, he explained how the forthcoming rule fits exactly into OSHA’s responsibilities for workplace safety, addressed the misconception that people will have to get vaccinated or be fired, and offered advice to help employers prepare for the new rule.

The White House’s plan has been well received, not just by public health organizations but top business groups, too, like the Business Roundtable. Yet, as we speak, 24 states have threatened to sue the federal government over this mandate. Can you make the case for why OSHA is, in fact, able to set requirements for workplace safety when it comes to COVID-19?

There’s a lot of misunderstanding and misconception out there. OSHA is not issuing a vaccination requirement. The heart of the OSHA law is a requirement that employers provide a workplace free of recognized serious hazards. And in the case of COVID, the hazard is the infectious worker who can infect other workers. 

What President Biden is telling OSHA to do is to issue an Emergency Temporary Standard (ETS) that requires employers to take steps to make it less likely that potentially infectious workers enter the workplace and transmit the virus to their co-workers and make them sick. So it’s really about protecting those other workers.

OSHA is not going to require any sort of vaccine mandate. OSHA will tell employers that you must ascertain that your employees are either fully vaccinated or that they have recently been tested and are negative for the virus.

A lot of critics of vaccination policy are focused on the penalties, the idea that someone could lose their job for not choosing to get vaccinated.

You do not have to fire workers who don’t do that — they just can’t come into the workplace and potentially expose other workers to the virus. Perhaps they can work from home as many of us have, or they can submit to weekly testing, but in some cases, they are likely to be let go. Look, if there’s asbestos in the workplace, the employer has to take steps to protect workers from that hazard, which generally has to be removed. It’s the same with infectious workers. 

From your experience as the longest-serving administrator in OSHA’s history, what can we expect from the Emergency Temporary Standard? And when should businesses expect to see it?

It’s going to be another few weeks before OSHA issues the standard. And when it comes out, OSHA will probably give employers some lead time, perhaps 30 days, before enforcement starts. So, companies have time now to get all of this in place, including a system where you can ascertain vaccination status and testing status. And employers will have to maintain those records so the OSHA inspector can see them, just like other OSHA logs. OSHA does have a couple thousand inspectors, with its state partners, but I tell people most OSHA standards enforce themselves because most employers are law-abiding. They do their best to comply with the regulations of any government agency.

Do you expect the ETS to require new standards for masking, distancing, ventilation and other safety measures in the workplace?

I think this will simply be a rule around ascertaining and keeping records of workers’ testing and vaccination status. But, as employers, you should think about other basic public health precautions that reduce the risk of virus transmission. My employer, George Washington University, requires full vaccination. I also get tested every 15 days by the university, and if I don’t do that or I test positive, my ID no longer works and I can’t go into my office. And we have to wear masks in any indoor situation. It’s inconvenient, but we’ve got to stop this pandemic, so we make sacrifices.

You also consult on protecting workplaces from COVID-19. What should employers be doing now, especially those who will be subject to OSHA’s new rule?

Vaccinations are the best answer. Testing is really the secondary choice, though, of course, there are some people who can’t get vaccinated, and testing is fine for them — but anything we can do to encourage vaccination is great. 

As an employer, you’ve got to make sure everybody recognizes that they are in this together, making it a joint effort as much as possible. If your employees are upset with what you’ve done and your communication plan isn’t very good, some may leave, and you certainly don’t want that. To date, though, most employers who have gone beyond the OSHA rule and require all their employees to be vaccinated have seen a very small percentage of employees resign.  

Visit “New Vaccine Requirements: Your Questions Answered” for David Michaels’ answers to questions from employers about the details of OSHA’s forthcoming rules regarding COVID-19 vaccination and testing.

The Health Action Alliance offers resources for businesses to strengthen their workplace vaccination and safety policies, including a Quick Start Guide, communications guidance, and a Decision Tool with the latest health, legal and other considerations for planning a workplace policy. The Health Action Alliance is a joint initiative of Ad Council, Business Roundtable, the CDC Foundation, the de Beaumont Foundation, and the Robert Wood Johnson Foundation — in partnership with Meteorite