Proposed Regulation: OSHA Workplace Vaccination Mandate on Business

The Occupational Safety and Health Administration (OSHA) is issuing an emergency temporary standard (ETS) to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

In addition, OSHA is considering expanding the rule to small businesses. "OSHA needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination."

• Tell OSHA what you think about the mandate on business with 100 or more employees.
• Tell OSHA what you think about expanding the mandate to small businesses.

 Comment Now

Submission of Public Comments:

• Written or electronic comments must be submitted by December 6, 2021.
• Docket No. OSHA-2021-0007, please include the Docket ID at the top of your comments.

Although this ETS takes effect immediately, it also serves as a proposal for a final standard. Accordingly, OSHA seeks comment on all aspects of this ETS and whether it should be adopted as a final standard. OSHA encourages commenters to explain why they prefer or disfavor particular policy choices, and include any relevant studies, experiences, anecdotes or other information that may help support the comment. In particular, OSHA seeks comments on the following topics:

• Employers with fewer than 100 employees
• Significant Risk
• Prior COVID-19 infections
• Experience with COVID-19 vaccination policies
• COVID-19 testing and removal
• Face coverings
• Other controls
• Educational materials
• Feasibility and health impacts

Online: The electronic Federal Docket Management System will accept comments prior to midnight eastern standard time at the end of that day. Comment Now

Further Reading

OSHA has issued a federal rule mandating Covid-19 vaccinations or at least weekly testing for workers at U.S. companies with 100 or more employees. 

The requirement published by the Occupational Safety and Health Administration in the Federal Register Thursday takes effect immediately. The first compliance deadline for employers—providing time off for workers to get inoculated and ensuring those who aren’t vaccinated are wearing masks—is Dec. 5. Workers must be fully vaccinated by Jan. 4 or submit to testing.

The safety agency measure was announced in conjunction with a separate Centers for Medicare and Medicaid Services vaccination requirement covering health-care workers at its 76,000 participating hospitals and other facilities. Enforcement for it too starts Jan. 4.

The emergency temporary standard, which OSHA justified by citing the “grave danger” posed by the lingering Coronavirus pandemic, requires covered employers to develop, implement, and enforce a mandatory Covid-19 vaccination policy or a policy requiring employees to choose either to get vaccinated or to undergo regular Covid-19 testing and wear a face covering at work.

In addition to requiring employers to provide paid time off for workers to get vaccinated, the ETS also mandates paid sick leave for them to recover from any side effects, the officials said.

Employers not enforcing OSHA’s newest rule could be cited by the agency and face a fine of up to $13,653 for each serious violation. A willful violation, essentially an employer deliberately disregarding the mandate, could lead to a fine as high as $136,532.

Department of Labor News Release: "The U.S. Department of Labor’s Occupational Safety and Health Administration today announced a new emergency temporary standard to protect more than 84 million workers from the spread of the coronavirus on the job. The nation’s unvaccinated workers face grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them.

Under this standard, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

Since 2020, the coronavirus has led to the deaths of 750,000 people in the U.S., and the infection of millions more, making it the deadliest pandemic in the nation’s history. Many of the people killed and infected by this virus were workers whose primary exposures occurred at their jobs. OSHA estimates that this rule will save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19 over the course of the ETS. “

COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said U.S. Labor Secretary Marty Walsh. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19. Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”

The emergency temporary standard covers employers with 100 or more employees – firm or company-wide – and provides options for compliance. The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

The ETS also requires employers to do the following:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
• 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.
• Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
• Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The emergency temporary standard does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings."

• Proposed Rule
• Department of Labor News Release

In Opposition:

Unconstitutional Vaccine Mandate Rep. Rick Crawford (R-AR): "The Department of Labor formally released the details of the Occupational Safety and Health Administration (OSHA) rule requiring large companies with 100 or more employees to ensure their workers are vaccinated by January 4, 2022. If employees refuse, they either must be tested weekly for COVID-19 and wear a mask at all times or be fired. The federal government has no power under the U.S. Constitution to force half the private sector workforce to be vaccinated against their will or to endure repeated medical testing as a condition of earning a living. The mandate exposes businesses to liability by forcing the company to require employees to divulge personal health information and potentially identify their religious affiliation. Like I have said many times in the past, I am vaccinated, and I believe vaccination makes sense, but we should respect that Americans prioritize different legitimate interests. Vaccine mandates create more vaccine hesitancy by dismissing the concerns of Americans and trampling the rights of individuals. Destroying peoples’ livelihoods continues the division President Biden promised to work against while running for president. This mandate is a condescending and counterproductive effort to shift blame from President Biden’s failures. His mandates will cause thousands of Americans to leave the workforce, especially in states like Arkansas with many working in agriculture and manufacturing. It’s inconceivable that the President would create more fines and penalties for businesses still trying to recover from last year’s shutdowns while coping with continued supply chain issues that are, along with his massive deficit spending, causing an inflation tax on working families that is growing faster than wages. We should be doing everything in our power to encourage folks to go back to work, not forcing them into unemployment and uncertainty."

President’s Move to Double Down on Vaccine Mandate Despite Warnings from Supply Chain  Rep. Sam Graves (R-MO): “If implemented, the vaccine mandate will cause untold additional disruptions throughout the entire supply chain.  We could see up to 37% of truckers decide to look for other jobs.  If even a fraction of that number of drivers leave their jobs, when we’re already facing a shortage of 80,000 truckers, the results will be incredibly destructive.  I have similarly grave concerns about port workers who could be induced to leave at a time when port congestion is being seen and felt by businesses and consumers everywhere.  Wholesale-distributors worry they’ll be unable to keep products moving through their warehouses because of the number of workers they could be forced to terminate.  The timing couldn’t be worse.  Thousands of workers who have been critical to the economy throughout the COVID pandemic are faced with this threat with the holidays now quickly approaching. “Just three weeks ago, the President told the private sector to ‘step up’ and address the supply chain crisis, but now he’s preparing to cripple their ability to deliver on what he’s asking of them.  The President needs to step up and stop stifling businesses’ efforts to recover from a crisis that his policies are making worse.  His administration’s refusal to acknowledge the rejection of his radical policies like this at the polls will continue delivering disastrous economic effects."