On Friday, the Supreme Court will begin hearing arguments to decide the fate of Joe Biden’s stalled vaccine and testing mandate, which would require employees at federally-funded health care facilities and businesses with more than 100 workers to either be vaccinated or submit to weekly testing.
While the White House and many economists have argued that the vaccine mandate will “promote a faster and stronger economic recovery,” powerful business interests don’t want the public health policy — as demonstrated by a deluge of comments submitted to federal agencies by corporate lobbying groups and reviewed by The Daily Poster.
The corporate opposition campaign comes amid data showing workplaces have become pandemic hotspots. As just one example: A study last year found that meatpacking plants accounted for more than 300,000 COVID-19 cases.
If the industry groups are successful, many Americans could end up in workplaces with no vaccine or testing mandates, and virtually no protections at all. Across the country, 27 states have no sick leave laws and have passed laws broadly shielding businesses from COVID-related health and safety lawsuits.
Biden first announced his mandate in September in response to flagging vaccine rollout. Today, just 62 percent of Americans are fully vaccinated, according to the Centers for Disease Control and Prevention (CDC), while only 34 percent have received a booster dose. Research has shown that organizations that implement vaccination requirements see their employee vaccination rates jump by more than 20 percent.
At first glance, the new mandate — an emergency temporary standard (ETS) from the Occupational Safety and Health Administration (OSHA) — would appear beneficial to businesses. The pandemic has led to global supply chain disruptions and worker shortages, meaning that companies cannot afford to lose employees to illness.
While some vaccinated Americans have experienced breakthrough infections, COVID vaccines — and particularly booster shots — help protect people from contracting the virus, and prevent more severe disease and death. According to the White House, vaccination requirements could lead to as many as five million U.S. workers returning to jobs.
Business lobbying groups have nevertheless lined up in opposition to Biden’s mandate.
Some of the groups are fighting the mandate in court, while others have been submitting comments to OSHA throughout the public comment period for the new rule, urging modification, clarification, and even wholesale abandonment of the rule — since industry groups want to derail what they see as burdensome regulations that could stymie business activity.
Some corporate lobbying groups want to revise Biden’s vaccine and testing mandate to allow for nonsensical exemptions for people who self-attest that they have been tested or have experienced “natural infection and recovery.” Others want the rule scrapped outright, arguing the mandate will turn businesses into “the government’s instruments of coercion against their own employees.”
The public comments lay bare the shallow arguments and crass calculus to which big business is willing to resort in order to protect profits at the risk of its own workers. Below are some of the groups fighting OSHA’s mandate, and their questionable reasonings for doing so.
U.S. Chamber of Commerce
Among the groups opposing the mandate is the nation’s top business lobbying group, the U.S. Chamber of Commerce. The Chamber submitted a 13-page comment to OSHA on behalf of itself and 50 business associations from different sectors of the economy, including manufacturing, fossil fuel infrastructure, construction, lumber, automobile sales, and apparel.
The Chamber had a number of complaints about the vaccine mandate. It alleged that the administration had not demonstrated that COVID presented a “grave danger” in every workplace. The organization also claimed that OSHA hadn’t adequately considered the impacts of the rule on small businesses. The size of such small businesses varies by industry, but according to the Small Business Administration, such companies can theoretically have up to 1,500 employees.
“Given that the ETS applies to all employers with 100 or more employees, the ETS will have a substantial impact on many small businesses,” noted the Chamber’s letter.
The letter also warns of the impact on major employers, noting that mandate compliance would be “a significant hardship for large businesses with sophisticated human resources… and administrative systems in place.”
The Chamber suggested a number of changes to the rule including not counting subsidiaries when tallying employee totals, allowing for businesses to show “good faith” efforts at compliance, clarifications on timing for reporting COVID hospitalizations and deaths, and allowing businesses to accept the results of employees’ self-administered tests, such as those taken at home.
“The ETS does not allow self-read and self-administered COVID-19 tests without observation — even though they would be the least expensive and least burdensome type of COVID-19 test for businesses,” the comment read. “This prohibition is premised on unsubstantiated allegations of potential employee dishonesty; however, disallowing these tests due to the unproven assumption that employees may not be truthful about results (even when subject to criminal penalties) fails to meet the grave danger standard for an emergency rule.”
The Chamber has not always been so keen on trusting workers, however. For years, the Institute for a Drug-Free Workplace, an affiliate of the Chamber, pushed for workplace drug testing of employees, including random tests.
In 1998, the Chamber’s president, Tom Donohue, testified in support of federal legislation to encourage more businesses to adopt drug-free workplace programs. The bill recommended that states offer companies financial incentives to do so, such as reducing workers' compensation premiums, cutting unemployment insurance premiums, and offering them tax deductions to pay for employees’ drug tests.
State Chambers of Commerce
In addition to the national organization, several state chambers of commerce have weighed in against the OSHA ETS.
In its comment, the Nebraska Chamber of Commerce and Industry argued that the rules exceeded “the workplace jurisdiction of the Occupational Safety and Occupation Act” and did “not practicably provide any added benefit beyond what most employers have already been doing to protect their workforce and the workplace.”
Employers ought to be able to craft their own vaccination policies, the Nebraska Chamber argued. It warned that the mandates could exacerbate worker shortages and called on OSHA to work with employers in the state to come up with ways to encourage voluntary vaccinations.
The Missouri Chamber of Commerce and Industry submitted comments to OSHA opposing the ETS expressing similar sentiments — that employers in the state should retain the right to make their own vaccination policy decisions; that the mandates could exacerbate workforce shortages; that voluntary efforts were sufficient.
‘Each workplace is unique and employers have long held the right to establish vaccine policies that work for their businesses,” the organization wrote. “The Missouri Chamber believes all employers should continue to have this right when it comes to the COVID-19 vaccine and testing. 80 percent of businesses across Missouri believe they should have the freedom to make their decisions on this matter.”
National Association of Chain Drug Stores
The National Association of Chain Drug Stores (NACDS), another lobbying group, also submitted a comment to OSHA seeking to limit and modify the ETS.
NACDS represents pharmacy chains and grocery companies with pharmacies, including CVS Health, Walgreens, Rite Aid, Albertsons, Kroger, Walmart, and Sam's Club — all of which offer COVID vaccinations.
The NACDS letter, like the one from the Chamber, requests an exemption for employers that make a good-faith effort to provide COVID tests as well as “the ability for employees to self-attest to their vaccination status or weekly testing with a negative result.”
One demand stands out. NACDS requested an exemption from the mandate for workers who have previously had COVID.
“OSHA’s ETS should exclude employees from the vaccination/testing requirement who attest to natural infection and recovery,” the comment reads. “Data shows that natural COVID-19 infection provides a level of protection from reinfection, therefore it is reasonable to consider that such individuals be exempt from vaccination requirements until sufficient data proves otherwise.”
The argument echoes the right-wing talking points being used by a dark money network of shadowy nonprofits and think tanks connected to oil billionaire Charles Koch that have been waging war against public health measures since the pandemic began in March 2020. Those efforts included amplifying the work of the fringe scientists behind the controversial Great Barrington Declaration, which called on governments to pursue herd immunity through natural infection, implementing only “focused protection” on the vulnerable.
Research has consistently proven, however, that natural COVID infections are not equivalent to getting a vaccine. People can be reinfected with COVID, particularly with the newer Omicron strain, which has caused a massive surge in coronavirus cases throughout the country.
The NACDS letter was sent on December 16, two weeks after the Washington Post reported, “Scientists in South Africa say omicron is at least three times more likely to cause reinfection than previous coronavirus variants such as beta and delta, according to a preliminary study published Thursday.”
Reuters subsequently reported that early data from the United Kingdom suggests “the protection against reinfection by Omicron afforded by past infection may be as low as 19 percent.”
“The level of protection people get from having COVID-19 may vary depending on how mild or severe their illness was, the time since their infection, and their age,” the CDC says. “No currently available test can reliably determine if a person is protected from infection.”
American Dental Association
Dentists and dental staff, of course, work very close to people’s faces. The UK is requiring all dentists to get fully vaccinated.
But the ADA doesn’t seem concerned about such matters. “Requiring dental practice owners to institute a mandatory vaccination and testing policy will have little impact on the safety of dental office workers and the patients they serve,” the group wrote. ‘Infection rates in dentistry are already low and vaccination rates are already high. However, it could have the unintended effect of exacerbating dental team shortages and impeding access to essential health care.”
The letter continued: “The vast majority of owner dentists who are recruiting team members report being ‘extremely’ or ‘very’ challenged to fill vacancies for dental hygienists, dental assistants, and administrative staff. Over 40 percent of dentists report that staffing shortages are limiting their ability to see more patients.”
National Federation of Independent Businesses
The National Federation of Independent Businesses, a lobbying group that calls itself “the voice of small business,” has also pushed back against the new OSHA rules. The group is behind the lawsuit being taken up by the Supreme Court on Friday.
NFIB is no stranger to legal action. The group famously sued the Obama administration over the Affordable Care Act’s Medicaid expansion and employer and individual mandates in the landmark case of NFIB v. Sebelius.
Its comments to OSHA about the new mandate, submitted on December 8, were more ideological than those submitted by other business groups. NFIB argued that “America's small and independent business owners should remain free to decide for themselves whether they will or will not impose upon employees in their businesses, as a condition of employment, a requirement to undergo vaccination or testing and masking.”
NFIB claimed the rule was “commandeering of America's small and independent businesses to serve as the government’s instruments of coercion against their own employees” and constituted an illegal overreach.
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