OSHA Issues COVID Vaccine Requirement For Private Employers

The Occupational Safety and Health Administration (OSHA) has gotten around to moving forward with the vaccine mandate for private employers of 100 or more workers demanded by Joe Biden. OSHA issued the “emergency temporary standard” on Thursday, and it will become effective when it has been published in the Federal Register and a public comment period has run.

The rule will permit employers to adopt an exemption policy that requires any worker who does not receive the vaccine to “undergo regular COVID-19 testing and wear a face covering.” Employers will not be required to pay for testing or masks.

Even though the rule is being imposed because of a declared “emergency,” the mandate will not be effective before January 4, 2022. After the rule becomes effective, covered businesses will risk fines up to $14,000 per violation. 

According to OSHA, the viability of natural immunity is a topic of “ongoing scientific inquiry.” However, immunity through the previous infection is not feasible for “employers to operationalize a standard” for an exception to the shot mandate for that reason.  The agency states that it has determined previously infected but unvaccinated workers “still face a grave danger from workplace exposure.”

OSHA reserves the option to expand the vaccine mandate for private employers to businesses with fewer than 100 workers and requests cooperation from smaller businesses that have chosen to implement mandates on their own as part of its investigation into broadening the mandate.

Several larger companies have previously imposed vaccine mandates for employees even though the Biden administration’s policy was no more than a press release until OSHA finally posted the rule this week.

Some Republican lawmakers have threatened to fight against the rule, calling it an “unconstitutional overreach” and harmful to a fragile American economy already endangered by labor supply problems and an ongoing supply-chain crisis.

Court challenges from several private employers and employee groups are expected to be filed in federal courts around the country. Given the broad application of the rule and its implications, legal commentators expect that representative cases are likely to make their way to the Supreme Court faster than might typically be expected.