WASHINGTON ― A faction of congressional Republicans threatened to shut down the government this week over what they call President Joe Biden’s “vaccine mandate.”
The rule from the Occupational Safety and Health Administration would not require employers to take action against unvaccinated workers so long as they’re willing to be tested weekly for COVID-19 ― but Republicans have ignored that part of the regulation.
“When you’re unwilling to describe something accurately, it betrays a weakness in your position,” Sen. Tim Kaine (D-Va.) said on the Senate floor Thursday evening. “It’s not a vaccine mandate. It is a vaccine-or-testing mandate.”
Indeed, the OSHA rule, which is tied up in court and hasn’t taken effect, does not require people to get shots. It requires large employers to implement programs in which workers who work indoors either get vaccinated or wear a mask and undergo weekly testing for COVID-19. Employers, if they choose, can mandate that their workers get the jab (as many employers already do). But OSHA’s rule allows every employer the leeway to test.
Kaine is not the only supporter of the rule annoyed by Republicans’ lack of nuance. David Michaels, who ran OSHA under former President Barack Obama, said that employers don’t have to force a vaccine on anyone — they just have to keep infected workers out of the workplace.
“Misrepresenting OSHA’s rule is a cynical tactic by Republican politicians and anti-vaxxers who seem to want to prolong the pandemic and the misery it has brought, in order to hurt the Biden Administration,” Michaels said in an email.
Testing is an option under the rule, but it would probably be an annoying one — and that may be the idea. In its preamble to the rule’s text, OSHA calls vaccination “the most effective and efficient control available” to prevent transmission of the virus. The logistical and financial hurdles to weekly tests make vaccination more attractive.
OSHA’s rule would not force employers to foot the bill for testing, raising questions about how the cost would be covered.
Federal law requires insurers to cover the cost of COVID-19 tests, but not for tests done as part of workplace screening. The Biden administration announced Thursday that insurers will have to reimburse the cost of over-the-counter tests. Such tests are acceptable under the OSHA rule if they are Food and Drug Administration-approved, but it’s not clear if insurers will have to reimburse for tests done for the sake of OSHA compliance. Even if they are covered, having to haggle with one’s insurance company would be a headache.
Another headache: “Home” tests not done under the supervision of a manager would have to be observed by a “telehealth proctor.”
Dr. Leana Wen, an emergency physician and public health professor at George Washington University, said the Biden administration should clarify if regular over-the-counter tests for work must be reimbursed. But she also said there is a good public health reason for the weekly testing regime to be somewhat obnoxious.
“In general, we need to make vaccination an easy and convenient choice, so having employees be required to mask and test is the right thing to do for public health reasons,” Wen said in an interview. “It adds an additional incentive for vaccination.”
Republicans have omitted the testing option from their descriptions of the mandate, but they shrugged it off when asked about it.
Sen. Roger Marshall (R-Kansas), the ringleader of the Senate Republicans attacking the mandate, said he thought firms with more than 100 employees ― the threshold for being subject to the requirement ― could not possibly handle testing their workforce every week.
“I’ve talked to hundreds of business owners back home, and they think it’s almost impossible to do that,” Marshall told HuffPost. “It is a huge inconvenience.”
Marshall added, “Frankly, some of those people don’t want to be tested, either.”
Other Republicans also brushed off the testing option. “The government’s role is to just give us good information and let us make our own decision,” Sen. Rick Scott (R-Fla.) said.
“Testing is expensive and it’s a burden,” Sen. John Kennedy (R-La.) added.
Some Republicans seemed unfamiliar with the testing alternative. “I hadn’t even heard of it,” Sen. James Inhofe (R-Okla.) said, noting that he’d been spending “every waking minute” on a national defense authorization bill. Inhofe was one of the Republicans who signed a letter calling the vaccine requirement “immoral.”
“My understanding is that there’s not necessarily an opt-out, but even so, I mean, nobody should have to go through like a daily, weekly, whatever testing protocol,” Rep. Chip Roy (R-Texas) said.
(Vaccine rules for federal workers and members of the armed forces don’t have the same testing options.)
State Republican officials have sued to stop the OSHA rule from moving forward, and a federal court granted a temporary stay blocking it on the grounds it raises “grave” constitutional issues. The case will go before a panel of judges at the conservative-leaning U.S. Court of Appeals for the 6th Circuit, then possibly the Supreme Court. Even if the administration is successful, the litigation could push implementation of the vaccine-or-test deadline well beyond Jan. 4.
It’s hard to say how most employers will respond to the testing piece of the rule, assuming the regulation survives. Some may be happy to implement a vaccine requirement as many large employers already have, using the OSHA rule as cover. Others may want to maintain the testing opt-out to prevent any vaccine resisters from leaving, so long as they find the testing workable.
Jordan Barab, a work safety expert and former OSHA official, said he believes the testing option would be a viable one, assuming the price of tests comes down. From a public-health perspective, Barab would prefer that the OSHA rule did not have a testing hatch door at all. But if the opt-out is there, he argues that employers should have to bear the cost of testing, so that more of them choose to forgo it.
“If OSHA ultimately would like employers to mandate vaccinations, then they should have made it uncomfortable for employers” to opt out, Barab said.
CORRECTION: A previous version of this story misidentified the state Sen. Roger Marshall represents.