When does COVID vaccine mandate start — and who pays for tests? What you need to know
Federal officials released the rules governing an employer vaccine and testing requirement on Nov. 4 — nearly two months after President Joe Biden first announced the mandate as part of his six-part plan to combat the spread of the coronavirus.
Senior officials with the Biden Administration said the rule will impact more than 84 million workers across the U.S.
The rule was issued in a nearly 500-page document as an emergency temporary standard (ETS) by the Occupational Safety and Health Administration, or OSHA.
“While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus,” Jim Frederick, deputy assistant secretary of labor for occupational safety and health, said in a news release.
The agency said it expects an additional 23 million people will get vaccinated because of the rule, which it also “conservatively estimated” will prevent 6,500 deaths and 250,000 hospitalizations.
Here are some of the big takeaways.
What does the rule say?
Employers with more than 100 employees must develop and enforce a policy mandating all workers get vaccinated against the coronavirus. Some employers may elect to allow unvaccinated workers to get tested for COVID-19 every week instead, OSHA said.
Those unvaccinated employees will also be required to wear a face covering while at work.
Workers must be given up to four hours of paid time off to get a vaccine as part of the plan, and companies have to develop a system for checking their employees’ vaccination status.
Workers will also be allowed to take “reasonable” paid sick leave to recover from a vaccine dose.
OSHA said the emergency temporary standard is designed to overrule any state laws or executive orders that bar private employers from passing vaccine mandates, such as those in Montana or Texas.
“This ETS will preempt inconsistent state and local requirements, including requirements that ban or limit employers’ authority to require vaccination,” the rule states.
When does the requirement take effect?
OSHA’s emergency temporary standard takes effect immediately after it’s published in the Federal Register — a compilation of current regulations, including presidential documents, rules, proposed rules and notices.
The standard is scheduled to be published Nov. 5.
Employers will have 30 days after it’s published to comply with most of the standard. But the testing requirement won’t kick in until 60 days after the standard is published.
According to a White House fact sheet, that means workers have until Jan. 4 to receive two doses of the Pfizer or Moderna vaccine or one dose of the Johnson & Johnson vaccine.
Booster shots are not covered under the mandate.
“After that, all covered employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider,” the White House said.
Who is covered by the ETS?
The emergency temporary standard covers about two-thirds of private employees in the U.S., according to OSHA. It will also apply to public workers employed by state and local governments — including teachers and school staff — in the 26 states and two territories with state OSHA plans.
All private employers with 100 or more workers, either at an individual firm or corporate-wide, are required to comply with the rule.
Temporary workers, seasonal workers, part-time workers and remote workers all count toward the 100-employee threshold.
If an employer has 100 employees when the standard takes effect but drops below the threshold at a later date, they are still required to comply. If an employer has fewer than 100 employees when the standard takes effect but hires enough people to meet the threshold down the line, they will also be required to comply.
A franchise that is independently owned and has one location or multiple locations with fewer than 100 employees combined will not be covered by the standard, Jordan Barab, former deputy assistant secretary at OSHA, told McClatchy News on Nov. 4.
Public employees without state plans are also not covered.
There are two types of employees who may be exempt from the vaccine and testing requirement, OSHA said. They include employees who work from home — or otherwise don’t work in a setting where workers or customers are present — as well as employees who work exclusively outside.
OSHA said that’s because the chance of exposure to COVID-19 is much lower for those workers.
The agency listed at least 12 categories of jobs in which employees work outdoors, including landscaping, construction, lifeguarding and sports. But OSHA said only a small percentage of employees in each of those jobs works exclusively outdoors — from .2% to 9%.
Will employers be required to pay for testing?
No, the temporary emergency standard doesn’t make companies pay for employees to get tested for the coronavirus. They also aren’t required to pay for face masks.
Employers might, however, be required by state and local laws or collective bargaining agreements to pay for testing. They could also voluntarily elect to cover the cost, as nothing in the rule prevents them from doing so.
Legal challenges
Several states and organizations have indicated they will challenge the standard in court — which OSHA appears to have anticipated.
The first 472 pages of the 490-page emergency temporary standard released Thursday discuss the agency’s legal basis for adopting it. Todd Logsdon, co-chair of the Workplace Safety and Catastrophe Practice Group at the national law firm Fisher Phillips, said the agency essentially “pre-filed a brief” that could be used in court.
To pass muster, OSHA will have to show it issued Thursday’s standard in response to a “grave danger” in the workplace, or a new hazard that can cause serious injury or death, said Travis Vance, who co-chairs the workplace safety practice group with Logsdon.
Because the standard applies exclusively to companies with more than 100 employees, challengers are likely to question why a smaller employer isn’t affected by the same “grave danger.”
OSHA addressed that concern in its preamble to the temporary standard, saying larger companies have the administrative, technological and economical capacity to address the hazard but that it’s still evaluating whether smaller firms can do the same.
The agency also invited public comment about the feasibility.
In addition to the grave danger argument, Vance said, legal challengers might also point to what’s known as the major questions doctrine — which says the courts will not defer to a federal agency’s authority on such issues with such vast economic and political impacts.
Vance said a third challenge might come in the form of the delegation doctrine, which argues the executive branch has impeded on the powers of Congress by issuing such a sweeping public health standard that should have been passed as part of a law by the legislative branch.
This story was originally published November 4, 2021 at 1:34 PM with the headline "When does COVID vaccine mandate start — and who pays for tests? What you need to know."
