WASHINGTON – Workers at larger businesses will have to get vaccinated for COVID-19 by Jan. 4, 2022, or face regular testing under new federal rules being released Thursday.
Workers who choose the testing option may have to bear the cost. They also will be required to wear a face mask on the job, beginning on Dec. 5.
The rules fill in the details for the vaccination requirement President Joe Biden announced in September for businesses with 100 or more employees.
The Labor Department is taking feedback over the next month on whether smaller workplaces should be included.
“COVID-19 continues to hold back our workforce and our economy – and it will continue to do so until more Americans are vaccinated,” Labor Secretary Marty Walsh and Jeff Zients, the White House COVID-19 response coordinator, wrote in an opinion piece for USA TODAY.
The Occupational Safety and Health Administration requirement also applies to state and local government workers in 26 states, including teachers and school staff.
Twenty-one of those states have the option of writing their own workplace rules for public and private sector workers. But those rules can’t be weaker than what the federal government is requiring – and must be adopted in 30 days.
Three states, Arizona, South Carolina and Utah, have already missed the deadline for adopting an emergency rule OSHA issued in June for health care workers.
The latest federal rules, which cover an estimated 84 million employees, are expected to be immediately challenged by GOP-led states, some of which have already moved to ban vaccination requirements.
“When the Biden Administration issues the OSHA vaccine mandate in the coming days, we will take immediate legal action,” Iowa Gov. Kim Reynolds said last week.
Debate, challenges expected quickly
Republicans have denounced the workplace requirement as federal overreach and a threat to individual liberty that will result in massive disruptions in the labor market.
“Your plan is disastrous and counterproductive,” the attorneys general of 24 states warned Biden in September.
Major business groups like the U.S. Chamber of Commerce and the Business Roundtable have not come out against a requirement, though they’ve pressed for more information about how new rules would be implemented.
But some organizations, including the National Retail Federation and the American Trucking Association, had urged that the requirements not go into effect until after the busy holiday season to avoid disruptions if workers quit.
The new rules do that. In addition, the previously announced Dec. 8 deadline for federal contractors to get fully vaccinated is being extended until Jan. 4, 2022. That’s also the vaccination deadline for workers at health care facilities that treat Medicare or Medicaid patients.
The deadlines were aligned to make compliance easier across the labor market, according to a senior administration official who briefed reporters on condition of anonymity.
The rules for federal contractors and health care workers are tougher, however, and do not include a testing option.
But Walsh, the Labor secretary, emphasized that the OSHA requirements for other businesses are a “floor for safety – not a ceiling.” Many businesses have already imposed full vaccination requirements, Walsh noted in his opinion piece with Zients.
Biden has said he reluctantly agreed to vaccination requirements after educational efforts and various incentives failed to persuade enough Americans to protect themselves and others against COVID-19.
Requirements have boosted vaccination rates at companies and institutions by at least 20%, according to the administration.
Nearly 90% of adults have received at least one dose of the COVID-19 vaccine and about 70% of adults are fully vaccinated, according to the Centers for Disease Control and Prevention.
Combined, the rules for larger businesses, federal contractors and health care workers are estimated by Goldman Sachs to cover 80% of the nation’s workforce.
While some employees will leave a job rather than get vaccinated, the financial firm projected that the reduced spread of the virus from higher vaccination rates will have a larger – and positive – effect on the economy.
About the new OSHA rules
The requirements issued by the Labor Department Thursday use an emergency procedure that sidesteps OSHA’s normal, lengthy rulemaking process.
To withstand a court challenge, the agency will have to prove that the rules are necessary to protect workers from a grave danger.
The administration estimates the requirements will save thousands of lives and prevent more than 250,000 hospitalizations during the six months after implementation.
Sidney Shapiro, a Wake Forest law professor who has worked as an OSHA consultant, told a congressional panel last week that the emergency standard has been met.
“It is true that the situation is improving, but not everywhere, not for certain,” Shapiro testified. “And COVID, unfortunately, is not going to go away.”
Scott Hecker, the workplace safety lawyer whom Republicans invited to testify, said OSHA has to explain why, if COVID is such a grave danger, the agency didn’t include a vaccination requirement when it issued new rules four months ago.
In addition to hitting larger businesses, the vaccination rules also apply to state and local government workers in more than half the states.
Five states – Connecticut, Illinois, Maine, New Jersey and New York – have OSHA-approved plans specifically for public employees.
Twenty-one states handle their own workplace enforcement. They are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington and Wyoming.
As a condition of not using OSHA, those states’ workplace rules have to apply to public employees as well as the private sector. In addition, their rules have to be “at least as effective.”
If states don’t comply, the Labor Department can take away some of a state’s workplace enforcement authority, a senior administration official confirmed.
And the administration stressed that the federal regulations pre-empt any state or local prohibition against vaccination requirements or mask mandates.
Labor Department officials said they expect the “vast majority” of workplaces to comply, as they do with other rules. And as with other requirements, OSHA will rely both on worker complaints and spot checks for enforcement.
Even before Biden announced the forthcoming standard in September, a quarter of private employers had vaccine requirements, according to Doron Dorfman, a Syracuse University law professor.
Five percent of unvaccinated adults surveyed in October say that have left a job because of a COVID-19 vaccination requirement, according to the nonpartisan Kaiser Family Foundation.
If faced with a requirement, more unvaccinated workers (46%) said they would most likely choose weekly testing than leave their job (37%) or get vaccinated (11%). If weekly testing is not an option, 17% said they would get vaccinated and 72% said they would quit.