OSHA announces new federal vaccine mandate for businesses

More than a month after President Joe Biden floated the idea of a federal vaccine mandate for private employers, the Occupational Safety and Health Administration released the new rules of the road for businesses on Thursday.

Companies, including federal contractors, will have until Jan. 4 to ensure workers are fully vaccinated, a holiday reprieve many businesses were hoping for. Companies will not be required to pay for the weekly testing that will be needed for unvaccinated employees after that date.

The vaccine compliance deadline for federal workers, with no testing option, remains Nov. 22.

Biden called on the OSHA to issue an emergency temporary standard that would require private businesses with at least 100 employees to put vaccine mandates in place or ensure workers are taking part in weekly testing.

Many businesses have already started working to comply with the expected rules, but there were a number of outstanding questions. Here are key answers that OSHA’s rule addresses for qualifying employers.

What employers are covered by OSHA’s federal vaccine mandate?

OSHA’s rule is consistent with Biden’s original directive—the rule will cover employers with 100 or more workers. There does not seem to be any carve-out for specific types of employers or industries. The mandate is expected to affect as many as 80 million Americans.

Do employers need to pay for testing?

Generally, businesses aren’t required to provide or pay for tests under the new policy. There are, however, potential exceptions if collective bargaining agreements or state/local laws require them to do so.

Do employers need to provide paid time off to get COVID vaccines or tests?

The OSHA rules require employers to provide paid time off to workers so they can receive the COVID-19 vaccine, as well as sick leave to recover from any side effects.

That’s not without some controversy, however.

“A lot of employers out there right now are really struggling to find employees to cover their workplaces, especially those in retail settings or restaurant setting hospitality. They’re going to have a lot of staffing issues that are going to absolutely come into play as they’re trying to make sure that they comply,” says Jay Seegers, a partner with BakerHostetler focused on employment and labor law.

How long do employers have before they need to comply?

Companies have until Jan. 4 to ensure their employees are fully vaccinated or tested regularly for COVID-19. This applies to federal contractors as well. However, all unvaccinated workers must begin wearing masks by Dec. 5.

Business groups like the Retail Industry Leaders Association had argued for a 90-day implementation period. “That would get us into 2022 and beyond the holiday season so at least we wouldn’t have that extra strain in the Q4 holiday season,” says Evan Armstrong, a member of RILA’s government affairs team.

Does OSHA’s vaccine rule provide any employee exemptions?

The OSHA rule will allow exemptions on medical and religious grounds, similar to the federal employee and contractor rules that businesses were already working to comply with prior to the previous Nov. 22 and Dec. 8 deadlines, respectively.

How will OSHA’s emergency temporary standard be enforced?

It’s worth noting while OSHA has the power to fine businesses up to $13,653 per violation, it may not have the resources to enforce this new mandate. The agency has about 800 inspectors to cover the estimated 100,000 employers set to be affected by the new requirements, according to Reuters.

That said, OSHA will conduct on-site workplace inspections to make sure companies comply with the rules.

Further complicating the issue is that about a dozen states have banned vaccine mandates. “Employers will have a choice to make in states that have vaccine mandate bans, like Texas. They will either violate the state directive or the federal mandate,” says Sandy Goldstein, clinical services leader at Mercer, a firm that provides advice and solutions around corporate health benefits, talent recruitment, risk management strategies, and reopening plans.

Under the supremacy clause of the U.S. Constitution, state directives would be struck down if conflicting with federal mandates. But that’s only if the federal mandate survives court challenges from states and employers, which Goldstein says are almost certain to come.