Biden Administration Releases Employer Vaccine Rules

The federal government has released the details of two administrative rules affecting more than 100 million workers in the United States, about two-thirds of the country’s active labor force. The Occupational Safety and Health Administration (OSHA) is requiring all employers with 100 or more employees to ensure that their employees are either vaccinated against COVID-19 or tested weekly for the disease. OSHA’s initial rule was officially published in the Federal Register on November 5. OSHA is a federal agency within the U.S. Department of Labor that regulates workplace safety.

An analysis by National Public Radio identified the following notable elements of the OSHA rule:

  • January 4 deadline: “Companies must ensure their workers are either fully vaccinated against COVID-19 by January 4, 2022, or that they produce a negative Covid test at least once a week. The rule will take effect as soon as it’s published in the Federal Register.”
  • Employers must provide PTO for vaccinations: “Employers must pay workers for the time it takes to get vaccinated and provide sick leave for workers to recover from any side effects.”
  • Employers don’t need to pay for testing: “In a move that appears designed to push workers to choose vaccinations over testing, the rule does not require employers to pay for or provide testing to workers who decline the vaccine. However, collective bargaining agreements or other circumstances may dictate otherwise in some cases.”
  • Unvaccinated must wear masks: “Unvaccinated workers must also wear face coverings while on the job.”

Reportedly, OSHA will largely have to rely on employers to self-enforce the rule. OSHA inspectors will likely focus on responding to employee complaints about noncompliance by their employer and may conduct COVID-related inspections when they are onsite for other reasons. According to National Public Radio, “employers who violate the rule can face fines of up to $13,653 per violation for serious violations and ten times that for willful or repeated violations.”

The OSHA rule is likely to face multiple legal challenges from employers and state governments; a coalition including most Republican state attorneys general issued a letter last month promising to challenge the rule in court. Meanwhile, some employer associations have expressed concerns that the rule will exacerbate existing labor and supply chain shortages.

The Centers for Medicare and Medicaid Services (CMS) has also released its own rule requiring about 17 million health care workers to be vaccinated for COVID-19 by January 4, 2022, with no option for testing in lieu of vaccination. The rule covers all clinical and non-clinical employees at the roughly 76,000 facilities that accept reimbursements from CMS through the Medicare or Medicaid programs.

In September, President Joe Biden (D) and his administration announced COVID-19 vaccine requirements for federal employees and contractors and for servicemembers in the U.S. Armed Forces, in addition to previewing the OSHA and CMS rules. Federal workers must be vaccinated by November 22, while contractors have until January 4 to comply. Federal employees and contractors do not have the option to be tested in lieu of vaccination.

Hamilton last covered this issue in early October.