The U.S. Labor Department Thursday put teeth into President Biden’s pledge of a vaccine mandate for employees at the nation’s large private companies, giving employers until Jan. 4 to ensure their workers are either vaccinated against COVID-19 or being tested weekly for the virus and wearing face masks on the job.
Several cities and counties in California have already enacted similar vaccine requirements for private employers, but the federal rules expand such requirements across the state. Here’s the latest on vaccine rules for private workers.
Q Which workers are affected by this vaccine requirement?
A The Department of Labor’s 490-page Occupational Safety and Health Administration rules affect employers of 100 or more total U.S. full-time and part-time workers, even if they are scattered in smaller numbers at multiple sites. That covers 84 million workers, or two-thirds of the nation’s private-sector workforce. For California and 25 other states with their own OSHA plans, it affects state and local government employees as well. Patrick Kallerman, vice president of research at the Bay Area Council Economic Institute, said there are over 15,000 firms in California with more than 100 employees, employing 57.2% of the state’s workforce.
Q Why doesn’t it apply to smaller businesses?
A OSHA said it was “moving in a stepwise fashion on the short timeline necessitated by the danger presented by COVID-19,” and limited the rule to large businesses to ensure they would have “sufficient administrative systems in place to comply quickly.” But OSHA said it is considering whether to expand that to smaller businesses in the future.
Q What about state vaccine mandates?
A California has already adopted requirements for for health care workers to be vaccinated and state workers and teachers to be either vaccinated or tested. California lawmakers considered a broader statewide employee vaccine mandate but failed to pass it this year; legislators may take it up again next year. Employment litigation attorney Anthony Zaller said states like California with their own OSHA plans may adopt their own rules as long as they are “at least as effective” as the federal law.
Q What about states like Texas that have banned vaccine mandates?
A OSHA claims its authority “preempts all state and local requirements” that “limit the authority of employers to require vaccination, face covering, or testing.” But states are challenging that in court.
Q What about local vaccine mandates?
A Several cities and counties, including San Francisco, Berkeley, and Contra Costa County and Los Angeles County, have adopted local requirements for certain employers such as restaurants, bars, nightclubs, gyms and dance studios to ensure their workers are vaccinated for COVID-19 or tested weekly for the virus. Zaller said an argument could be made that the federal rule overrides those local requirements where they differ — for instance, the local requirements also apply to smaller businesses — but Cal-OSHA can address that in its own pending decision.
Q Does this apply to employees who aren’t with or around other people on the job, such as those who work from home?
A No. OSHA concluded the chance of such a person being exposed to the virus is “negligible” and therefore is exempting those workers who do not come into contact with others for work purposes.
Q What about employees who only work outdoors?
A OSHA reviewed studies and concluded that while “there may be some low risk to workers” exclusively in outdoor settings, it isn’t a “grave danger” and therefore excluded employees who work exclusively outdoors.
Q What about those who’ve already recovered from past COVID-19 infection?
A OSHA found there wasn’t enough clear evidence that prior infection produced consistent durable immunity. So OSHA is requiring those who recovered from infection to be subject to the requirement.
Q Are religious or personal exemptions allowed?
A Because the rule allows weekly testing and mask-wearing as an alternative to the shots, Zaller said that counts as a reasonable accommodation for religious vaccine objections.
Q What counts as acceptable proof of vaccination?
A Vaccination proof includes immunization records from a health care provider or pharmacy, a copy of the U.S. CDC COVID-19 Vaccination Record Card, a copy of medical records documenting the vaccination or a copy of immunization records from a public health, state, or tribal immunization information system or any other official documentation listing the vaccine type, date given, employee name and who gave the shot.
Q How long will the vaccine mandate be in effect?
A The requirement is an “emergency temporary standard,” which OSHA acknowledges is “by design, temporary in nature,” but also “serves as a proposal for a permanent standard” that must be finalized in six months.
Q Does “fully vaccinated” include boosters?
A OSHA is defining fully vaccinated to mean the “primary series” of shots, which is two shots of the Pfizer or Moderna vaccines or one shot of the Johnson & Johnson vaccine.
Q What do business groups think of these mandates?
A Organizations representing businesses, whose bottom lines have been pummeled by the pandemic, have generally been supportive. The U.S. Chamber of Commerce believes that widespread vaccination is “the key to beating COVID” and said OSHA “made some significant adjustments” in the rule “that reflect concerns raised by the business community.” The Bay Area Council and Silicon Valley Leadership Group also have endorsed employee vaccine requirements.
Q Will this stand up in court?
A State officials in Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, New Hampshire, Oklahoma and South Dakota said Thursday they would file lawsuits against the mandate as soon as Friday. The Daily Wire, a conservative media company, filed a challenge in federal court on Thursday. So did companies in Michigan and Ohio represented by a conservative advocacy law firm. San Francisco Attorney Harmeet K. Dhillon, representing The Daily Wire, said the federal government “lacks the legal authority to compel private employers to play the role of vaccine or COVID police.” Zaller, the employment lawyer, said “we’ll see how that all plays out.”
The Associated Press contributed to this report