Biden Asks OSHA to Mandate Vaccines at Businesses With 100 or More Workers

New federal safety regulations, which oblige companies with more than 100 employees to require vaccinations against the coronavirus, will confirm the mandates that already exist in many companies and provide protection to employers who have yet to make a decision.

The proposed rules, which President Biden announced Thursday, will require workers to be vaccinated or tested weekly, and companies will require companies to offer their employees paid time off for vaccination. It is the government’s biggest push to draw employers into a campaign to vaccinate the country.

Around 80 million workers will be affected. According to the White House, the requirements are imposed by the Department of Labor and its occupational safety and health agency, which are developing a temporary emergency standard for executing the mandate.

“Some of the biggest companies are already asking for it – United Airlines, Disney, Tyson Foods and even Fox News,” Biden said during a speech on Thursday.

However, the move is sure to face political setbacks and litigation. And it faces significant challenges, such as establishing a way to collect and store vaccination information and a procedure for exemptions. The President did not set any penalties for failure to comply with the requirements.

Lawyers said Thursday it was not immediately clear whether the rule would apply to all employees or just those who work in the company’s offices or facilities.

The Biden government also plans to mandate vaccinations for federal employees and contractors, as well as 17 million healthcare workers in hospitals and other facilities that receive Medicare and Medicaid funding.

Mr Biden called for more companies to support efforts to increase vaccinations. “For those of you who run large entertainment venues – from sports arenas to concert halls to cinemas – please ask that people get vaccinated or submit a negative test as an entry requirement,” he said.

OSHA oversees occupational safety, which the agency is likely to claim extends to vaccine mandates. The agency has issued further guidelines for pandemic precautions, such as a rule in June requiring healthcare employers to provide protective equipment, ensure adequate ventilation and ensure social distancing, among other things.

“I think the Department of Labor is likely to be able to justify its job on health and safety concerns for workers,” said Steve Bell, partner at Dorsey & Whitney law firm, which specializes in labor law and employment.

“You have a broad, fairly solid basis for saying, ‘We are here to protect the workers and that is our responsibility and we believe this is something that protects the workers,'” he said.

Updated

9/9/2021, 8:48 p.m. ET

OSHA has the power to quickly issue a regulation, known as a Temporary Emergency Standard, if it can demonstrate that workers are exposed to a serious hazard and that the regulation is necessary to address that hazard. The regulation must also be enforceable for employers.

Such a standard would pre-empt existing state government rules, except in states that have their own OSHA-approved employment agencies – roughly half of the states in the country. Countries with their own programs have 30 days in which to adopt a standard that is at least as effective and which must cover state and local government employees as well as teachers. Federal OSHA rules do not apply to state and local government employees.

The regulation is expected to be challenged in court by employers and possibly even some states. But the legal basis for a state challenge is likely to be weakest in states directly under OSHA’s jurisdiction. These include some of the states that have been hardest hit by Covid-19 lately and where politicians have resisted mandates – like Texas and Florida.

The US Chamber of Commerce, the business lobby, said in a statement that it “will work to ensure that employers have the resources, guidance and flexibility needed to keep their employees and customers safe and meet the demands of the business community to adhere to public health ”. Another major corporate advocacy group, the Business Roundtable, said it “welcomed” the actions of the Biden government, including requiring companies to offer paid time off for workers to get vaccinated.

The Culinary Workers Union, which represents 57,000 workers in Nevada, said “tighter” vaccine mandates are “the only way we believe a full recovery is possible.”

However, some unions have been cautious with mandates as members are concerned about potential health side effects or reluctant to interfere with an employer in what they consider to be a personal health decision.

Understand US vaccination and mask requirements

• • Vaccination rules. On August 23, the Food and Drug Administration fully approved Pfizer-BioNTech’s coronavirus vaccine for people aged 16 and over, paving the way for increased mandates in both the public and private sectors. Private companies are increasingly demanding vaccines for employees. Such mandates are legally permissible and have been confirmed in legal challenges.
  • Mask rules. The Centers for Disease Control and Prevention in July recommended that all Americans, regardless of vaccination status, wear masks in public places indoors in areas with outbreaks, a reversal of the guidelines offered in May. See where the CDC guidelines would apply and where states have implemented their own mask guidelines. The battle over masks is controversial in some states, with some local leaders defying state bans.
  • College and Universities. More than 400 colleges and universities require a vaccination against Covid-19. Almost all of them are in states that voted for President Biden.
  • schools. Both California and New York City have introduced vaccine mandates for educational staff. A survey published in August found that many American parents of school-age children are against mandatory vaccines for students, but are more likely to support masking requirements for students, teachers and staff who are not vaccinated.
  • Hospitals and medical centers. Many hospitals and large health systems require their employees to have a Covid-19 vaccine, due to rising case numbers due to the Delta variant and persistently low vaccination rates in their communities, even within their workforce.
  • New York City. Proof of vaccination is required by workers and customers for indoor dining, gyms, performances, and other indoor situations, though enforcement doesn’t begin until September 13th. Teachers and other educational workers in the city’s vast school system are required to have at least one vaccine dose by September 27, without the option of weekly testing. City hospital staff must also be vaccinated or have weekly tests. Similar rules apply to employees in New York State.
  • At the federal level. The Pentagon announced that it would make coronavirus vaccinations compulsory for the country’s 1.3 million active soldiers “by mid-September at the latest. President Biden announced that all civil federal employees would need to be vaccinated against the coronavirus or undergo regular tests, social distancing, mask requirements and travel restrictions.

On August 23, the Food and Drug Administration paved the way for broader mandates with the full approval of the Pfizer BioNTech vaccine.

Employers as diverse as CVS Health, Goldman Sachs, and Chevron have established some form of requirement. Businesses were eager to get their employees back into the office and to return to some degree of normalcy. And others, like AstraZeneca and JPMorgan Chase, already require vaccination or weekly tests.

However, many mandates are not comprehensive. Companies like Walmart and Citigroup have demands on their corporate workforce, but not on the frontline workers in stores or branches. Many companies struggle with a labor shortage and varying degrees of employee reluctance to vaccinate.

“The competitive conditions are level,” said Ian Schaefer, partner at the law firm Loeb & Loeb, which specializes in labor issues and advises companies on their Covid policy. “Especially in service industries or where they may have been represented by minorities or low-income earners who are disproportionately unlikely to be vaccinated – these employers have been reluctant to enforce a vaccination mandate because they thought they were losing talent.”

“If they put this mandate in place and the people in their work stream don’t get vaccinated and cross the street somewhere else, they’d be in a fix,” he said.

Mr Biden had already put pressure on private employers to help with vaccination efforts. In August, the White House met with executives from companies that had mandated vaccinations, including United Airlines’ Scott Kirby, to discuss how they could encourage other business leaders to do the same.

Joseph Allen, associate professor at Harvard TH Chan School of Public Health, who advises companies on Covid strategies, said the far-reaching rule announced on Thursday was “a clear signal” to the federal government that it stands behind mandates.

“I suspect the dominoes will keep falling,” he said. “It is also necessary and necessary. The voluntary approach has reached its limits. “

Katie Rogers and Noam Scheiber contributed the reporting.