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Biden’s Employer Shot Mandate Tasks OSHA With New Rulemaking (1)

Sept. 9, 2021, 7:36 PM; Updated: Sept. 9, 2021, 11:55 PM

The Biden administration’s ramped-up effort to combat the Covid-19 pandemic tasks the U.S. Labor Department with writing a regulation that would force tens of millions of more workers to get vaccinated—or produce weekly negative test results—a move that will test the agency’s power and could draw a legal challenge.

The Labor Department will issue a regulation requiring companies with 100 or more employees to ensure their workforces are either “fully vaccinated” or test negative for Covid-19 at least once a week, the White House announced Thursday. Although the agency’s ability to meet legal thresholds necessary for such a forceful intervention into the private sector remains unclear, some in the business community who’ve been wrestling with how to increase their employee vaccination rates without controversy are indicating support for the move.

“Many employers are already mandating in one form or another—for them, this is potentially welcome relief,” said Roger King, senior labor and employment counsel at HR Policy Association, which represents Fortune 500 companies. “For others that are wavering, it provides an incentive to go towards some type of requirement.”

DOL’s Occupational Safety and Health Administration is developing the emergency rule, which the White House anticipates will apply to more than 80 million private-sector workers. The rule, which a senior administration official said will be published in the coming weeks, would take the form of an emergency temporary standard, meaning it will undergo an expedited review process before taking effect and won’t involve getting public comment. The president also is directing OSHA to require businesses subject to the rule to give workers paid time off to get vaccinated and to recover from any side effects.

When enforcing the rule, OSHA could fine noncomplying businesses up to $14,000 per violation, the senior official said on a call for reporters.

“The bottom line: We’re going to protect workers from unvaccinated coworkers,” President Joe Biden said at a press conference Thursday. “We’re going to reduce the spread of Covid-19 by increasing the share of the workforce that is vaccinated in businesses all across America.”

Workers at companies subject to the regulation who still refuse to get vaccinated would need to show proof of a negative virus test at least once per week before reporting to their worksite, the White House said.

Getting Aggressive

The administration offered few immediate details on the regulation’s parameters and scope, or on what legal arguments the department would make to assert such expansive authority over mid-size and large businesses. The initiative, along with other new orders rolled out Thursday to boost the nation’s vaccination rate, demonstrated a more aggressive phase in the administration’s efforts to get businesses to stamp out the spread of Covid-19 infections.

Earlier efforts to encourage employer cooperation led some major corporations, such as Tyson Foods Inc. and United Airlines Inc., to voluntarily mandate that their employees get vaccinated, but nearly 80 million Americans are eligible for a vaccination who still have yet to receive their first shot.

David Michaels, who led OSHA during the Obama administration and is now a professor at the George Washington University School of Public Health in Washington, said this order recognizes OSHA has a public health role and that Covid-19 is a workplace concern.

“I think this is a very important step forward,” Michaels said, noting that by making testing and vaccinations part of an OSHA standard, the federal requirement would take precedent over state and local restrictions on private-industry employers requiring vaccinations or testing.

Litigation Expected

Melanie Paul, the Atlanta-based co-leader of Jackson Lewis P.C.’s workplace safety and health practice group, said she expects the emergency temporary standard will be challenged.

Until OSHA issues the standard it’s hard to say what the specific objections would be, Paul said. One objection could be that if OSHA were to require paid time off for vaccinations and testing, that the requirement would be beyond the agency’s jurisdiction.

It would be a stretch for OSHA to justify the standard, said Baruch Fellner, a partner with Gibson Dunn & Crutcher LLP in Washington.

The standard’s “tenuous umbilical cord” to the Occupational Safety and Health Act, Fellner said, would be an OSHA determination that vaccinated employees are subject to substantial and unreasonable harm in the workplace because they are exposed to an individual who is not vaccinated.

“That would be the occupational safety and health argument for this kind of a move,” Fellner said.

The OSH Act limits emergency temporary standards to new hazards that pose a “grave danger” to workers.

Debbie Berkowitz and Jordan Barab, both senior OSHA officials under former President Barack Obama, said they’re confident the agency will be on solid legal footing. They said Biden’s directive could have gone further by requiring employers to take other measures to keep workers safe, such as mask mandates.

“One of the issues here is it sort of looks like we’re putting the onus on the worker,” Berkowitz said, “when it’s the working conditions that are creating the environment to spread the delta variant.”

Absent more details, a host of questions arose among employee and management stakeholders about how the OSHA rule will be implemented. That includes who would pay for the Covid-19 testing, how employers would verify workers’ vaccination status, and its intersection with religious exemptions.

Moving Fast

How quickly OSHA and the White House can issue an emergency temporary standard remains to be seen. The agency’s current Covid-19 emergency standard requires many health-care employers to safeguard employees from infection; that rule spent six months in development until it was issued June 21.

Part of the delay was due to the administration’s decision that workers outside of health care were adequately protected by OSHA’s non-mandatory guidance, leading the agency to write a rule specific to health-care settings.

But that could be corrected in the vaccination context with a White House that’s “willing to clear the roads for this to come out quickly,” Barab said.

The only vaccination covered by an OSHA rule is the mandate that employers whose workers could be exposed to Hepatitis B offer free shots to employees. Workers who choose not to be vaccinated for Hepatitis B are required to sign a form acknowledging that they were offered the shot and declined.

OSHA’s most recent Covid-19 guidance, issued Aug. 13, said the agency “emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19”—but it didn’t require employers to ensure workers were vaccinated or that unvaccinated individuals submit to testing.

(Adds comments from attorneys, others)

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com

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