Companies with more than 100 employees will be mandated to require coronavirus vaccinations for their workers or do regular testing by Jan. 4 under the terms of a new federal rule released Thursday by the Biden administration.
The policy is already being contested by a number of Republicans, and Texas Attorney General Ken Paxton said on Twitter he planned to sue the federal government to block the policy, calling it an “illegal, unconstitutional regulation.”
The new policy would require weekly testing and mandatory face-masking for workers who choose not to get vaccinated. It also specifies that employers must provide paid time off for workers to get vaccinated or recover from any side effects. But companies are able to require unvaccinated employees to foot the bill for tests.
“Low-wage, hourly and front-line workers have been particularly hard hit by the pandemic,” said Rep. Robert C. “Bobby” Scott (D-Va.), the chairman of the House Committee on Education and Labor, who has pushed for the Department of Labor to act more aggressively on workplace safety throughout the pandemic. “Workplace vaccination policies will save lives, protect our economic recovery and help us finally get things back to normal.”
So far, 222 million Americans have received at least one dose of the vaccine, but the numbers vary widely in different parts of the country. During a surge of the virus’s delta variant in the late summer, White House officials escalated efforts to vaccinate more Americans, leading to the new emergency rule.
Coronavirus vaccines have proved successful at preventing infection and have in many cases minimized the symptoms of those who do become sick, offering what public health experts say is the best chance to lead the country out of the pandemic.
But many Republicans have asserted that having the federal government become involved in vaccine rules amounts to an unfair government edict. A number of GOP governors and attorneys general have promised to challenge the policy in court.
“I don’t think they properly weighed all the risks and benefits of doing this and are using a shotgun approach and not a scalpel when infections are dropping and vaccinations are already continuing to rise,” said Roger Severino, a former Trump administration official and fellow at the socially conservative Ethics and Public Policy Center. “All the indicators are that the grave danger has passed.”
Labor and White House officials spent weeks hammering out the text, keeping an eye on the high likelihood of legal challenges it would face and the complexity of issues raised by a rule that will apply to hundreds of thousands of businesses. The White House estimates the policy will apply to 84 million workers across the country.
More than 70 business groups, individuals and other interested parties met with officials in the final days before the rule was released to ask questions and express concerns about things like how the requirement would affect staffing with labor shortages if people refused to comply and quit their jobs. A number of industries are already struggling to find employees, particularly in sectors like construction and trucking.
The new policy “is likely to increase compliance costs and cause regulatory burdens that will exacerbate several headwinds facing the construction industry,” Ben Brubeck, a vice president at Associated Builders and Contractors, said in a statement.
The rule tracks very closely to the plan announced by the White House in September, though it could be modified going forward. For example, written into the text of the 490-page rule is a hint that the Occupational Safety and Health Administration (OSHA) may explore expanding the rule in the future to cover all businesses, not just those with more than 100 employees.
“OSHA is confident that employers with 100 or more employees have the administrative capacity to implement the standard’s requirements promptly, but is less confident that smaller employers can do so without undue disruption,” it said, saying it would seek public comment on the matter.
Because of the testing option, the new White House ruling does not constitute a strict vaccine mandate. In fact, it is softer than many of the policies instituted by many private companies as well as state governments that have required vaccinations for employees. Still, the new federal ruling is expected to give companies that had hoped to institute more stringent mandates, but backed off for fear of employee opposition, more political cover to do so.
Companies that don’t comply could face the potential of $13,000 fines per violation, or $136,000 per willful violation, potentially adding hundreds of thousands of dollars or more in fines for companies that are found to be well outside of the rules.
The release of the rule was paired with the release of a vaccine mandate for workers at facilities that participate in Medicaid or Medicare.
Those employees will be required to be fully vaccinated by Jan. 4, adding an additional 17 million workers to the requirements, at 76,000 medical facilities. Medical or religious exemptions will apply in these cases. All told, the federal government’s various vaccine requirements will apply to more than two-thirds of the workforce, officials said.
The Department of Labor estimates the rule will prevent more than 250,000 hospitalizations from workplace covid-19 exposure and save thousands of lives. Even before the rule’s implementation, more than a third of U.S. workers now say their employer is requiring them to get vaccinated.
“Covid-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” Labor Secretary Marty Walsh said Thursday.
Opposition has been marshaling in advance of the OSHA rule’s release at the political level. Republican attorneys general in at least 24 states have vowed to fight the rule in court, and one, Arizona Attorney General Mark Brnovich (R), has already filed a lawsuit against the federal government over it. Some state governments, including Missouri’s, are pledging to explore legislation that could exempt their state from the requirement.
But officials from OSHA and the Centers for Medicare and Medicaid Services told reporters that the new rules “preempt” any state or local laws that seek to ban or limit employer authority for vaccination, masks and testing, like one that Republicans in Texas passed recently. They said they plan to take action if states that have their own occupational health plans, which are required to be at least as stringent as the federal rules, do not comply with the federal plan.
The mandates appear to enjoy support by many Americans: A September Gallup poll found that 58 percent of people said they supported the coming OSHA requirement, and 63 percent said they supported the mandate at Medicaid and Medicare facilities. Labor unions, like the American Federation of Teachers and the Retail, Wholesale and Department Store Union, cheered the new rule, citing the health threats workers have faced throughout the pandemic.
The GOP efforts to continue to contest the rule come in addition to legal battles in states including Minnesota, New York, Texas, Michigan, Kentucky, Ohio and others over other coronavirus vaccine mandates. More than 10 Republican-controlled states have also filed a lawsuit against the federal government for its vaccination requirements for federal contractors. But those mandates have mostly withstood legal challenges, as have private mandates imposed by big companies and hospital systems.
Mandates do appear to have led to an increase in vaccinations. United Airlines, which had one of the strictest mandates for a major air carrier, said its employee vaccination rate increased to more than 99 percent. Delta, which used financial penalties and testing requirements, saw the employee vaccination rate go to 90 percent from 75 percent. Tyson Foods said recently that at least 96 percent of its employees were vaccinated in advance of its Nov. 1 deadline — up from under 50 percent before it announced the mandate in August.
Many hospitals in New York saw vaccination rates increase to more than 95 percent by the deadline of the state’s mandate for health-care workers, up from the 70 percent to 80 percent range before the rule was announced. In California, major hospitals saw vaccination rates increase to about 90 percent after a similar, albeit slightly less stringent, mandate.
The White House said these type of vaccination mandates have been increasing rates by more than 20 percentage points among their target populations, and it cited other studies showing that increased vaccination would help smooth the way for the economic recovery.
In New York, which instituted a mandate for municipal workers, about 91 percent of the city’s workforce had at least one shot by the deadline earlier this week, which officials hailed as a significant success. Those numbers rose steadily as the deadline approached — increasing 5 percentage points in the final days.
About 9,000 workers — less than 2.5 percent of the city’s 378,000-person workforce — were placed on unpaid leave because they didn’t get vaccinated, despite protests and threats from anti-vaccine contingents in the police, fire and sanitation departments that the mandate would lead to massive labor shortages. Another 12,000 workers have pending medical or religious exemptions, officials said.
There, and in other cities like Los Angeles, firefighter and police unions have sought to challenge the mandates in court. In Chicago on Monday, a judge blocked the city’s Dec. 31 deadline for enforcing a vaccination mandate for the police department in a lawsuit brought by the police union, saying the two sides needed more time to resolve the dispute. The judge left intact the city’s current rules, which require municipal workers to report their vaccination status and pay for twice-weekly testing if they are not vaccinated. Another judge in the city recently dismissed a motion to halt the city’s requirement.
Overall, 32 out of 34 city departments in Chicago say that at least 92 percent of their employees are in compliance with the city’s rules. But those numbers have lagged among police and fire departments, with only 72 percent of police and 87 percent of the fire department in compliance, according to WBEZ.
Some other labor unions, advocates and workers have hailed the effort.
“The covid-19 pandemic was a whole other story. It showed how much we needed strong OSHA standards,” Anne Barden, a dietary aide, cook and union member at Trinity Hill Care Center in Connecticut, said during a recent news conference organized by the National Council for Occupational Safety and Health about the coming rule.
Barden spoke about the toll the pandemic took on workers, saying that at one point half of the staff members were out sick or in quarantine.
“We welcome OSHA’s more aggressive approach,” Barden said.