By Shereen Siewert

The U.S. Dept. of Labor on Thursday announced aggressive action to enforce mandatory vaccines for 84 million workers, including many in the Wausau area.

The latest action forces employers with more than 100 employees to impose mandates on their employees or face hefty fines. The deadline is Jan. 4.

Workers can refuse, but those who do must undergo weekly testing and wear masks on the job, including when riding in a vehicle with others for work purposes. Those employees will also likely be forced to foot the bill for their own testing each week and employers will not be required to pay for masks, either.

Health care officials say the cost alone may be the leverage that will force workers to get the shot. But labor unions could point to existing agreements that will require companies to pay for safety requirements.

The rule from the Centers for Medicare & Medicaid Services applies to all health care workers at facilities participating in Medicare and Medicaid. That includes most major health care organizations. Locally, Marshfield Clinic Health System and some nursing homes have already implemented vaccine mandates for employees. Aspirus Health did not have such a rule, but said in a news release issued yesterday the organization will comply and “has been preparing” for such an order.

Under the new rules, companies must pay workers for the time used to get vaccinated. They are also required to provide sick leave for workers to recover from vaccine side effects.

Employers will now have the burden of determining the vaccine status of all employees, meaning they will have to see proof of vaccination and maintain vaccine records. Employers must “Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria,” the rule states.

Employers have 30 days to comply with the bulk of the regulation announced, and 60 days to comply with the testing requirement. Violators could face fines of $13,000, or more than 10 times that amount if the violation is “willful.”

The announcement prompted the Wisconsin Institute for Law & Liberty to file a lawsuit in a federal appeals court Thursday to block the new rule. The organization has repeatedly sued state and local municipal health departments to upend public health orders, including mask mandates.

Rick Esenberg, WILL’s president and general counsel, called the new rules “illegal and unconstitutional” and circumventing the normal legal process.

WILL filed the lawsuit on behalf of Tankcraft and Plasticraft, both manufacturers in Walworth County.

Steve Fettig, an executive of the two companies, called the rule “interference of a federal bureaucracy” and said the companies each “respect our employees’ fundamental right to make their own private, difficult medical choices.” His comments were included in a WILL news release regarding the lawsuit.

Anticipating this legal argument, the order issued Thursday speaks to OSHA’s authority to issue such a mandate. The OSHA order says, in effect, that where there is a potential “grave danger” to employees, the government has the obligation and authority to protect them, and that Congress has granted OSHA virtually unlimited discretion to keep workers safe:

The purpose of the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 651 et seq., is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651(b). To this end, Congress authorized the Secretary of Labor (Secretary) to promulgate and enforce occupational safety and health standards under sections 6(b) and (c) of the OSH Act.1 29 U.S.C. 655(b). These provisions provide bases for issuing occupational safety and health standards under the Act. Once OSHA has established as a threshold matter that a health standard is necessary under section 6(b) or (c)—i.e., to reduce a significant risk of material health impairment, or a grave danger to employee health—the Act gives the Secretary “almost unlimited discretion to devise means to achieve the congressionally mandated goal” of protecting employee health, subject to the constraints of feasibility. See United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1230 (D.C. Cir. 1981)

A standard’s individual requirements need only be “reasonably related” to the purpose of ensuring a safe and healthful working environment. Id. at 1237, 1241; see also Forging Indus.

Ass’n v. Sec’y of Labor, 773 F.2d 1436, 1447 (4th Cir. 1985). OSHA’s authority to regulate employers is hedged by constitutional considerations and, pursuant to section 4(b)(1) of the OSH Act, the regulations and enforcement policies of other federal agencies. See, e.g., Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 241 (2002).

The OSH Act in section 6(c)(1) states that the Secretary “shall” issue an emergency temporary standard (ETS) upon a finding that the ETS is necessary to address a grave danger to workers. See 29 U.S.C. 655(c). In particular, the Secretary shall provide, without regard to the requirements of chapter 5, title 5, United States Code, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if the Secretary makes two determinations: That employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and that such emergency standard is necessary to protect employees from such danger. 29 U.S.C. 655(c)(1).

Enforcement action is also in question. As NPR points out, OSHA will need to rely on worker complaints to find noncompliant companies.

“Employee complaints are an important part of enforcement given how few inspectors the government has,” said Rich Fairfax, a safety consultant with the National Safety Council who spent 36 years at OSHA, including as head of enforcement.

According to OSHA, there are about 1,850 federal and state inspectors covering some 8 million worksites nationwide.