With the Supreme Court set to make a determination on the permissibility of the Biden Administration’s Vaccine Mandate this week, many are wondering what the fines could be for noncompliance.
When President Biden announced a federal COVID-19 vaccine and testing requirement for companies with 100 or more employees, legal experts had their concerns. The biggest among them was how the historically underfunded and understaffed federal agency tasked with drafting the rule — the Occupational Safety and Health Administration, or OSHA — could enforce it. It has been estimated that 84 million workers will be impacted by this mandate. OSHA didn’t initially address enforcement or penalties when it issued the emergency temporary standard on November 4, 2021. Furthermore, a former deputy assistant secretary of OSHA said the requirement covers more workers and workplaces than any previous standard issued by the federal agency, which he said currently employs less than 2,000 inspectors. Statistics show it would take OSHA 165 years to inspect every workplace just once. So enforcement of the mandate will be major challenge for OSHA.
So, the odds of a random OSHA inspection occurring at a business to determine whether that business follows the vaccine mandate is remote. What is far more likely than a random visit from an OSHA Inspector is a disgruntled employee or a third party reporting a business for noncompliance. That could then result in an inspector being sent to the business to conduct an assessment.
Apparently, there is no separate category of enforcement for the vaccine mandate. That means companies that are not in compliance face the standard fine determinations (based on OSHA’s 2021 posted penalty amounts) of up to $13,653 for a serious violation or $136,532 for a willful violation. However, these amounts are the maximum OSHA can fine employers. Some OSHA observers have speculated that the initial fines for vaccine mandate violations will be in the neighborhood of $2,000 to $4,000, but violation amounts are typically determined by the “OSHA Area Director” who signs off on a citation and determines the precise penalty for violations. The Area Director would take four factors into account when deciding the penalty level: (1) the gravity of the violation (entailing the worst possible outcome and risk of it occurring), (2) the employer’s size, (3) the employer’s “good faith” effort to comply with regulations, and (4) the employer’s history of compliance. Yet another source has said that given the importance placed on the emergency temporary standard by the Biden Administration and the safety threat associated with COVID-19 at work, it seems more likely that violations may be treated harshly. OSHA does not have the resources to audit every large employer or fine everybody. So, it’s possible that OSHA will look to make an example of a few violators with large penalties to influence employers to comply with the mandate.
Again, the Supreme Court will be hearing arguments concerning the mandate’s permissibility on January 7th. Potentially impacted large employers are hopeful that the contemplation of what fines might be is irrelevant after a Supreme Court decision on the fate of the mandate.