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OSHA Covid Shot-or-Test Rule Gets White House OK for Release (1)

Nov. 1, 2021, 2:28 PMUpdated: Nov. 1, 2021, 3:21 PM

A federal Covid-19 vaccination and testing mandate for employers with 100 or more employees is close to being released after the White House’s regulatory office completed a three week review of the OSHA emergency rule.

The analysis by the Office of Information and Regulatory Affairs is usually the last formal step before a final rule becomes public. In a Monday notice, the regulatory office said it completed its review.

In a separate emailed statement Monday, a Department of Labor spokesperson said the emergency temporary standard will be published in the Federal Register “in the coming days.” The standard will require covered employers to “develop, implement, and enforce a mandatory Covid-19 vaccination policy, unless they adopt a policy requiring employees to choose either to get vaccinated or to undergo regular Covid-19 testing and wear a face covering at work.”

The standard also will require employers to provide paid time off to workers to get vaccinated and paid sick leave to recover from any side effects, the spokesperson said.

President Joe Biden on Sept. 9 ordered the U.S. Occupational Safety and Health Administration to develop a standard for employers with at least 100 workers to compel vaccinations or require testing at least weekly.

Labor and business groups have been waiting to learn how OSHA will determine which workers would be included to reach the 100-employee threshold, who will pay for testing, and when the requirements become enforceable. The OIRA review included meetings with more than 100 organizations and individuals.

The DOL spokesperson said the rule will apply to employers “with 100 or more employees, firm- or company-wide.”

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

The OSHA standard is part of a wider Biden administration drive to raise inoculation rates that includes mandates for employees of federal contractors and health-care facilities receiving Medicare or Medicaid payments. The latter rule, from the Centers for Medicare & Medicaid Services, was also cleared by the White House regulatory office on Monday but has yet to be released.

Numerous Republican governors and state attorneys general have promised to challenge the OSHA standard in court.

(Adds comment from OSHA)

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com