News & Commentary

September 10, 2021

Tascha Shahriari-Parsa

Tascha Shahriari-Parsa is a student at Harvard Law School.

On Thursday, Biden announced plans for a monumental vaccine mandate that could apply to as many as 100 million Americans. Under the mandate, employers with more than 100 workers will need to either be vaccinated or else face weekly testing; businesses will also be mandated to provide paid time off to receive inoculations. The vaccine mandate will be issued by OSHA as an emergency temporary standard on the basis that the rule is necessary to avoid exposing workers to a serious danger. As an emergency temporary standard, the rule could be passed without inviting public comment.

Unions have expressed mixed opinions about the vaccine mandate. As the new AFL-CIO President Liz Shuler put it, “I’ll be honest with you, our unions are in different places.” The Culinary Workers Union, representing around 60,000 hospitality workers in Nevada, stated that a vaccine mandate is “the only way we see a full recovery possible.” On the other hand, SEIU1199 previously opposed a vaccine mandate for health care workers in the state of New York, recognizing the importance of vaccines but holding that “we have the right to bargain any change to our jobs.” Regardless, a good deal of how the vaccine mandate is carried out in practice will likely be bargained by local unions, including in determining how medical exemptions are considered.

On Wednesday, a draft portion of the Democrats’ budget bill was released that would impose new civil penalties or raise existing penalties for violations of labor and employment laws. For example, the proposal would increase penalties for OSHA violations ten-fold, and augment FLSA penalties by even more. Significantly, as Maxwell explained yesterday, it would borrow the civil penalties scheme of the PRO Act to impose fines for violations of the National Violations Act, at a maximum of $50,000 per violation or $100,000 for serious repeat offenders. The fines would not only go into effect for existing ULPs, but also apply to other ways in which workers’ rights to organize are commonly stifled by employers, such as hiring permanent strike replacements, holding captive audience meetings, or imposing class-action waivers.

On Wednesday, the California State Senate passed a bill that will outlaw employer-mandated production quotas for employees that prevent workers from using the bathroom or taking state-mandated breaks. The bill, supported by the International Brotherhood of Teamsters, was drafted to combat the high levels of injuries at Amazon warehouses.

On Tuesday, OSHA received a complaint from the Sacramento City Teachers Association accusing the district of mishandling a COVID-19 outbreak by prompting employees, including an unvaccinated teacher, to show up to work even when they had symptoms associated with COVID-19 or had been exposed to COVID-19 at work. Additionally, the complaint alleges that after a number of custodians tested positive, the school operated with less janitorial staff and thus was unable to adequately keep classrooms sanitized. The union further stated that the district failed to properly implement contract tracing measures, such as when a teacher tested positive but was not contacted by the district about contact tracing whatsoever.

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