By Adam Andrzejewski
President Joe Biden didn’t just announce a Covid-19 vaccine mandate on companies employing 100 or more people, he plans to enforce it.
On Saturday, Speaker Nancy Pelosi’s House quietly tucked an enforcement mechanism into their $3.5 trillion “reconciliation” bill, passed it out of the Budget Committee, and sent it to the House floor.
Buried on page 168 of the House Democrats’ 2,465-page mega bill is a tenfold increase in fines for employers that “willfully,” “repeatedly,” or even seriously violate a section of labor law that deals with hazards, death, or serious physical harm to their employees.
The increased fines on employers could run as high as $70,000 for serious infractions, and $700,000 for willful or repeated violations—almost three-quarters of a million dollars for each fine. If enacted into law, vax enforcement could bankrupt non-compliant companies even more quickly than the $14,000 OSHA fine anticipated under Biden’s announced mandate.
The Biden Administration has already started implementing its vaccine mandate enforcement blueprint:
- The Occupational Safety and Health Administration (OSHA) set precedent this summer and published an emergency Covid-19 rule in the Federal Registertaking jurisdiction over and providing justification for Covid-19 being a workplace hazard for healthcare employment.
- Early in September, Biden announced his 100-or-more employee Covid-19 vaccine mandate and tasked OSHA with drafting an enforcement rule to exert emergency vaccine compliance authority over companies with 100 or more employees.
- The legislative provision that passed the Budget Committee raises the OSHA fines for non-compliance 10 times higher – and up to $700,000 for each “willful” or “repeated” violation. Speaker Nancy Pelosi has not announced when the House will vote on the reconciliation bill that includes the new OSHA fines.
- If the legislation is enacted, OSHA could levy draconian fines to enforce Biden’s vaccine mandate, a move that could rapidly bankrupt non-compliant companies. The Biden mandate affects employers collectively employing an estimated 80 million workers.
The Democrats are playing hardball.
President Biden embraced an aggressive stance earlier this month when he challenged Republicans who are threatening lawsuits over what they decry as his federal overreach: “Have at it. … We’re playing for real here. This isn’t a game.” The Legislation
The provision tucked in the House reconciliation budget bill (on page 168) that increases OSHA fines reads:
SEC. 21004. ADJUSTMENT OF CIVIL PENALTIES.
(a) OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970.—Section 17 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666) is amended—
(1) in subsection (a)—
(A) by striking ‘‘$70,000’’ and inserting ‘‘$700,000’’; and
(B) by striking ‘‘$5,000’’ and inserting ‘‘$50,000’’;
(2) in subsection (b), by striking ‘‘$7,000’’ and inserting ‘‘$70,000’’; and
(3) in subsection (d), by striking ‘‘$7,000’’ and inserting ‘‘$70,000’’
That provision would change existing law relating to OSHA’s enforcement fines, the very same section of law whose fines OSHA referenced in its June Covid-19 healthcare worker rule and is likely to use again to enforce its forthcoming vaccine compliance rules.
The Existing Law
22 U.S.C.§ 666 lays out OSHA enforcement fine levels. The 1970-enacted law reads:
29 U.S. Code § 666 - Civil and criminal penalties
(a) Willful or repeated violation Any employer who willfully or repeatedly violates the requirements of section 654 of this title, any standard, rule, or order promulgated pursuant to section 655 of this title, or regulations prescribed pursuant to this chapter may be assessed a civil penalty of not more than $70,000 for each violation, but not less than $5,000 for each willful violation
(b) Citation for serious violation Any employer who has received a citation for a serious violation of the requirements of section 654 of this title, of any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, shall be assessed a civil penalty of up to $7,000 for each such violation [emphasis added].
Each year, OSHA adjusts these penalties for inflation, so for 2021, the fines are not actually capped at $70,000 and $7,000, but $136,532 and $13,653 per violation. If House Democrats get their way, by enacting the page 168 changes, those fines would increase to $700,000 for willful and repeated violations and $70,000 for serious violations.
Section 654, cross-referenced in the OSHA enforcement penalty code, outlines the lawrequiring workplaces to be “free from recognized hazards” causing harm or death:
29 U.S. Code § 654 - Duties of employers and employees
(a) Each employer—
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this chapter.
(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct [emphasis added].
OSHA has already published a rule this year claiming Covid-19 is a workplace hazard, and the agency is using this provision of law to assert and enforce its authority. It is likely the new rule to enforce Biden’s mandate will also use this authority, and by extension use the fines upon enforcement.
Huge Crippling OSHA Fines, Likely By Design
The crippling change described on page 168 of the Democrats’ bill isn’t a typo or a clerical error. It was inserted by design and, likely, with the hope that no one would notice before Democrats ram the bill through Congress.
If enacted, it could bankrupt a whole host of companies that do not believe they should have to comply with the Biden administration’s mandate or harbor the cost of intrusive, weekly tests.
In its June 2021 emergency rule affecting health care workers, OSHA complained it was having a hard time motivating employers with its paltry $13,653 fine:
“OSHA has been limited in its ability to impose penalties high enough to motivate the very large employers who are unlikely to be deterred by penalty assessments of tens of thousands of dollars, but whose noncompliance can endanger thousands of workers …”
The Critics
Some have openly discussed businesses defying the mandate and taking their risks with OSHA fines. For example, Rep. Chip Roy (R-TX) tweeted that businesses “should openly rebel” against any OSHA rule.
It’s one thing to defy a $14,000 fine. It’s quite another to risk incurring hundreds of thousands of dollars in fines. One or two disgruntled employees, for example, could bring an employer $70,000-$140,000 in OSHA fines. If considered “willful,” as per Rep. Roy’s tweet — just three “violations” could quickly become a $2.1 million OSHA fine.
Conclusion:
If its provision becomes law, the Biden administration may force American businesses to choose between vaccinating their employees, testing them weekly for Covid-19, or going bankrupt under crippling OSHA fines.
In September, Biden warned the tens of millions of Americans who have declined vaccination against Covid-19, “We’ve been patient. But our patience is wearing thin, and your refusal has cost all of us.”
Now the Democrats in the House are hoping to make employers foot the bill for that “cost” in the form of fines and bankruptcy.
Republicans might want to read page 168 of the Democrats’ bill. After all, as we like to say at OpenTheBooks.com, the text of the bill is online in real time.
Additional Reading:
29 U.S. Code § 666 - Civil and criminal penalties.
29 U.S. Code § 654 - Duties of employers and employees, referenced in 29 U.S.C. § 666
“How OSHA Can Conjure Biden’s Soft Vaccine Mandate: Explained” Sept. 14, 2021
“Occupational Safety and Health Administration (OSHA): Emergency Temporary Standards (ETS) and COVID-19,” Congressional Research Services, Updated September 13, 2021,
OSHA, “Occupational Exposure to Covid-19; Emergency Temporary Standard,” 86 Federal Register 32376, June 21, 2021.
OSHA Penalties as of Jan. 15, 2021, U.S. Department of Labor (DOL)
OSHA Memo on Annual Penalty Adjustments, Department of Labor
Note: We reached out to the White House, Speaker Nancy Pelosi, and OSHA for comment.