The Morning Jolt

Health Care

Say, Where Is That Biden Regulation on Vaccine Mandates?

President Joe Biden delivers remarks in the East Room at the White House in Washington, D.C., August 18, 2021. (Elizabeth Frantz/Reuters)

On the menu today: Three weeks after President Biden announced that all companies with 100 or more employees would have to enforce a vaccine mandate or weekly testing, there’s still no sense of when the Occupational Safety and Health Administration (OSHA) will actually issue the regulations; two Morning Jolt readers offer different perspectives on New York state’s vaccine mandate from the view of a patient and the view of an administrator; and the Albany Times Union notices a curious loophole in the state’s vaccine-mandate law.

The Curious Case of the Missing OSHA Regulation

Seven days ago, this newsletter noted that President Biden’s vaccine mandate for employers had not yet been issued by OSHA, two weeks after Biden announced the new policy.

A week later, not only has OSHA not issued the rule, but the Biden administration apparently has no idea when the federal agency will issue the new regulations. Yesterday, White House press secretary Jen Psaki declined to offer any timeline:

Q: About the OSHA rule —

PSAKI: Yeah.

Q: On mandates. You had said it would be a few weeks just now. When it was announced a few weeks ago, it was going to take a few weeks. So, are you signaling a delay of any kind of that rule?

PSAKI: No, we never gave an exact timeline, so — maybe we should have been more specific at the time. Obviously, it takes some time. And we want to make sure when we put these out, they’re clear and they provide guidance necessary to businesses.

Q: So, how many weeks, then, are you expecting it to take?

PSAKI: I can’t give you a timeline. OSHA is working on them. But obviously — hopefully, we’ll know more in the coming weeks.

Businesses are starting to get irked, not just with the delay, but by the fact that OSHA has indicated it’s not interested in hearing from businesses on how the mandate could be best implemented. The Coalition for Workplace Safety — which includes groups such as the U.S. Chamber of Commerce, National Retail Federation, the National Association of Manufacturers, and the National Association of Home Builders — wrote a letter full of palpable frustration to OSHA’s current head, James Frederick, the acting assistant secretary of Labor.

“This ETS is expected to be the most far-reaching standard ever issued by OSHA, and public input will be critical,” the Coalition wrote. “Numerous trade associations, which are member organizations of the coalition, have reached out to us with questions their members have posed regarding the ETS and related implementation. Many of these questions are detailed and nuanced. OSHA should consider these questions and seek written input on a draft standard from stakeholders before issuing any ETS. To do otherwise invites avoidable implementation challenges and costs that would undermine the effectiveness of this ETS achieving its goals.”

(Not that it is the biggest deal in the world, but OSHA has not had a Senate-confirmed director since 2017. Acting directors have run the agency for long stretches throughout its history.)

As noted a week ago, businesses have a lot of questions about how this new mandate is going to work. What is considered documentation for proof of vaccination and how will booster vaccinations be factored into compliance? Must an employee be “fully vaccinated” in order to work? How will the requirements address natural immunity? Will individuals that have contracted COVID-19 be required to be vaccinated or submit to testing requirements? Will the requirements only apply to vaccines that are fully approved by the FDA? (The other day in my local pharmacy, a guy said he had gotten one shot of the Oxford/AstraZeneca vaccine in the United Kingdom and wanted to know whether Pfizer or Moderna were compatible with it.) What are the consequences of falsifying one’s vaccination status and does responsibility rest with the individual or employer? If an employee takes a COVID-19 test but the results are not yet available, is the employee allowed to continue to work pending the results? Should employees choose not to vaccinate, is the company or employee responsible for securing and paying for testing? Will paid time off be required for weekly tests?

Once enacted, the mandate will almost certainly face immediate legal challenges. This week, David B. Rivkin Jr. and Robert Alt wrote in a Wall Street Journal op-ed that, “The Occupational Safety and Health Act of 1970 authorizes OSHA to enact rules that are ‘reasonably necessary or appropriate to provide safe or healthful employment and places of employment.’ But the Biden mandate is unreasonably and unnecessarily broad. As announced, it applies to all employees, even those who work at home, as millions have done during the pandemic. It’s simultaneously too narrow, failing to require vaccination for contractors, customers and other nonemployees who may be present at the work site. It’s overbroad in another way: Previous Covid infection doesn’t excuse employees from the vaccine requirement.”

Rivkin and Alt also noted that OSHA is bypassing the usual notice-and-comment rule-making process, and issuing what’s known as an Emergency Temporary Standard. OSHA has used that legal authority only ten times in 50 years. “Courts have decided challenges to six of those standards, nixing five and upholding only one.”

What Is It Like in New York Hospitals Right Now?

Two Morning Jolt readers offer diametrically opposed perspectives on New York state’s policy of firing hospital, nursing-home, and long-term-care facility workers who are not vaccinated.

“My 75-year-old mother collapsed at home Monday evening after commenting that she wasn’t feeling well,” writes one reader. “My dad called an ambulance, and she was taken to a Rochester hospital. She was given oxygen in the ambulance and felt much better, but still had difficulty breathing. Sadly, there was no one available to help her at the hospital. She waited five hours in the emergency with my dad only to eventually give up and go home. She has a primary care physician appointment tomorrow and sounded pretty good when I spoke with her last night. My dad commented that the lack of staff in the ER was due to the vaccine mandate in New York.”

I would note that hospitals are short of staff for reasons besides employees departing because of the vaccine mandate. But that’s one of the factors that made this policy controversial — the institutions were forced to dismiss staff when they already didn’t have enough, and almost every worker involved in the pandemic response was battling the effects of burnout. Also note that as of yesterday, 66.8 percent of all residents of Monroe County, N.Y., which includes Rochester, have one dose of a vaccine, and 63 percent are fully vaccinated.

The other perspective comes from a longtime reader whom I respect a great deal, and who is an executive for a small health-care company.

“We’ve achieved 98 percent compliance,” this executive begins. “Other organizations like mine have had similar results. But some certainly have terminated staff over refusing the vaccine. Our organization requirement drove some ‘hesitants’ or ‘postponers’ to get vaccinated, and I’m pleased that we have had that impact.”

“In addition to the ‘public good’ perspective, vaccinating any workers is useful for the employer, in that the workers are at much lower risk of contracting the disease and requiring time away from work,” this executive continues. “In addition, vaccination reduces the risk of the disease spreading through the employee population, though I acknowledge that at a 98 percent vaccination rate makes the latter scenario less likely. This benefit is compounded in health care, where an unvaccinated worker could transmit the disease to a patient. If that could be proven, the organization could be in serious legal jeopardy.”

This executive articulated another concern, noting that he, and other leaders at health-care organizations, find the employees who refuse to be vaccinated troubling, and perhaps not a good fit for their organization. From their perspective, the risk/benefit analysis of vaccination against COVID-19 is obvious, and they find it difficult to have faith in the judgment of those who refuse to get vaccinated — particularly those who work closely with patients.

Wait, So Only Some New York Doctors and Nurses Need to Be Vaccinated?

Meanwhile, the Albany Times-Union spotlights a curious loophole in New York’s vaccine mandate:

A second mandate that’s scheduled to take effect Oct. 12 will give all other state employees, including thousands of nurses and physicians in executive-controlled agencies such as the Office of Mental Health and Office for People With Developmental Disabilities, the ability to be tested weekly for COVID-19 in lieu of being vaccinated. The Oct. 12 mandate also will apply to medical personnel who work in patient-care settings in state prisons. . . . The governor’s office and the state Department of Health did not respond to questions about why only one set of medical professionals are being mandated to get vaccinated.

Ever get the feeling that these lawmakers and state regulators are just making it up as they go along?

ADDENDA: Right now, the outlook is grim for both the “Bipartisan Infrastructure Framework” — the roughly $1 trillion infrastructure legislation — and the gargantuan $3.5 trillion “Build Back Better” legislation. West Virginia senator Joe Manchin’s opposition to the latter, at least in its current form, appears intractable. But keep in mind, the worse this blows up in Democrats’ faces, the more desperate they will be to salvage something, and thus the more likely they are to unify behind some alternate, smaller version of these proposals.

It’s easily overlooked, but the Biden administration sure seems to be making a lot of concessions to Russia. I’m so old, I can remember when most Democrats thought that Vladimir Putin was the root of all evil, and that his malevolent reign had to be resisted at every opportunity. As I suspected, most Democrats didn’t hate Donald Trump because of his connections to Vladimir Putin. They briefly hated Vladimir Putin because of his connections to Donald Trump.

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