Last week, our President Biden screamed his anger at America and its 80,000,000 un-vaxxed citizens giving voice to his growing impatience about the world of vax and imposing upon their employers a rule that will create a $13,600 “fine” for any company that employs more than 100 workers if any single employee is either not vaxxed or tested weekly.
OK, dear reader, let me break it down for y’all.
1. President Biden wants every American to be vaccinated against the COVID virus as a means of conquering the Chinese Scourge — herd immunity and all that. Seems a worthy objective, no?
2. Harnessing the power of the Department of Labor, overseer of the American workplace through its Occupational Health and Safety Administration, the President has proposed a rule — ordered OSHA to draft a rule — requiring vaccination or a weekly negative test.
3. The rule applies to all employers of more than 100 employees, which is not going to apply to all 80,000,000 un-vaxxed Americans.
It does not apply to employers of fewer than 100 employees which is why the 80,000,000 person target is not really going to be impacted.
About 100,000,000 workers are thought to work for employers who employ 100 or more employees. A great many workers work for much smaller companies.
The targeted number of unvaxxed — 80,000,000 — does not correlate well with the 100 employee companies. It’s off.
4. The rule requires vaccination or a weekly “negative” COVID test.
5. If OSHA finds the employer has workers who are either not vaxxed or un-tested, then OSHA may impose a fine of up to $13,600/individual per each such happenstance.
Doing the math — you have 1,000 employees and 10 of them go unvaxxed or tested and you are staring down the barrel of a $136,000 fine which can be imposed again and again.
Ys, dear reader, the President can. There is no question as to his authority.
The OSHA has the right to enact emergency workplace rules when it finds that the American workplace is potentially exposed to a “grave workplace danger or risk” such as a run amok virus.
Unfortunately, when President Biden scolded the American public, he failed to use the appropriate words to signal that he was ordering OSHA to make the appropriate finding of “grave danger/risk” which justifies operating outside the Federal rulemaking norms that require publication in the Federal Register and a period of public comment, followed by hearings.
Can they pencil whip things into shape when OSHA and the Department of Labor write the final rule? Of course they can.
So, yes, the President has all the authority he needs. The Department of Labor and OSHA have used such authority to deal with benzene and asbestos in the past.
How did that work out, you ask? It triggered decades of litigation and the emergency rules accomplished nothing.
Well, dear reader, we will not know until we see the actual draft rule which I suspect will take a couple of months (by which time I predict the crisis will have passed, but that is a topic for another day).
The way OSHA operates in the construction industry, as an example, is to show up and conduct unannounced inspections followed by a list of violations and a proposed fine.
The OSHA inspector is drawn to every open electrical box, every unshored ditch, every scaffold without a toe kickboard, and every steel worker without a safety belt on a high rise project. The inspector writes up all the violations.
The inspector’s bosses decide on the fines. The contractor is notified of the violations and the proposed fine.
The contractor takes corrective action and then fights tooth and nail over the fines which fight lasts for years and is ultimately negotiated down to about $0.10/$1.00 imposed.
It is a bureaucratic circle jerk.
It is not wildly different than the existing OSHA system co-mingled with a bit of eVerify.
Of course not, dear reader. Let me tell you why and how it won’t work.
1. It will take months to write the rule and by then the COVID crisis will have passed.
2. It does not overlap and apply to the 80,000,000 unvaxxed and there are tons of folks employed by companies with fewer than 100 employees.
3. The employee will simply provide a counterfeit vaccine card or test record like a college freshman’s fake ID used to drink beer.
4. it sets up an unholy alliance between the employer and the employee while simultaneously setting up a rub point between the same folks. The impact on the workplace will be a disaster.
Unless, you have fewer than 100 employees in which case you will have lots of potential new employees.
5. This will never get beyond temporary restraining orders and injunctions. The litigation — just like benzene and asbestos — will be monumental.
6. The proposed fine is absurd — $13,600 for each incidence? Really?
This rule will never work and it is a perfect example of failed leadership and divisive friction, something this admin has lowered the bar on continually.
If President Biden was serious about this program, he might have actually employed some leadership.
1. The target group does not work.
2. The program is all stick and no carrot. It is punitive and it punishes the employer rather than the employee.
It transfers the nanny state to the company headquarters. Business CEOs are not government enforcers. Sorry.
3. A skillful leader would have employed information, communication, and persuasion.
Before applying the lash, make the case for why the behavior is desirable at the individual and national level. Do this with a smile.
4. A skillful leader would have offered an incentive rather than a beating. How about a $100/employee tax credit when the employer hits 98% vax status for every company in America, not just 100+ employees?
5. Go-to-market strategy, Joe? Ever heard of it?
Educate, inform, persuade, incentivize, offer positive outcome testimonials, offer negative outcome testimonials, inject a scorekeeping methodology, target the right audience.
Joe, babe, remember the ALS Ice Bucket Challenge? That’s the kind of thinking you need to employ.
But, hey, what the Hell do I really know anyway? I’m just a Big Red Car. Have a great week and, if it strikes you, get vaxxed.