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What’s in the Biden Administration’s Covid Shot-or-Test Rule (1)

Nov. 4, 2021, 1:13 PMUpdated: Nov. 4, 2021, 5:01 PM

Calling the virus that’s killed 750,000 Americans a “grave danger,” the Biden administration on Thursday issued an emergency temporary standard mandating vaccinations or at least weekly testing for workers of large employers. The measure marks the first time the Occupational Safety and Health Administration has mandated vaccination for any disease.

Which employers must comply?

The standard applies to businesses with 100 or more employees “firm or company wide,” senior administration officials said. The OSHA measure arrives at the same time as one issued by the Centers for Medicare and Medicaid Services requiring the inoculation of all health-care workers at its participating facilities. It also follows earlier vaccination mandates covering federal government workers and employees of federal contractors, as well as a separate pandemic-related emergency rule for health-care workers issued in June.

The 28 states and territories with their own worker safety agencies have 30 days to implement the federal OSHA standard or their own mandate. If a state chooses to write its own standard, the requirements can’t be less protective than the federal mandate. State that don’t implement a rule face the possibility that OSHA could take over inspections in the state, but that process can takes months or years to complete.

What are the compliance deadlines?

The standard will take effect Friday when it’s published in the Federal Register. It contains two significant deadlines. By Dec. 5, employers must have their compliance program in place, offer paid time off for vaccinations, and require unvaccinated workers to wear masks. The deadline for workers to be vaccinated or start being tested is Jan. 4. Employees will need up to six weeks to be fully vaccinated, depending on which vaccine is chosen. The two-month lead time is an apparent victory for employers who asked for the shot requirement to be delayed until after the holiday shopping and travel season.

When does the standard expire?

As an emergency temporary standard, the mandate is in effect for six months, according to the Occupational Safety and Health Act. Then, OSHA must replace it with a permanent standard.

What happens if a company doesn’t comply?

If a company is inspected and the employer can’t produce records showing the firm is following the standard, OSHA has up to six months following that inspection to issue citations.

Each “serious” violation of the standard could result in a maximum fine of $13,653. The cap for willful or repeat violations is $136,532. However, the Build Back Better Act, if it becomes law, would raise maximum fines for all OSHA rules to $70,000 for serious violations and $700,000 for willful or repeat violations.

After an employer is cited, the business can try to reach a settlement with OSHA and perhaps get a lower penalty. The employer can also file an appeal with the independent judicial panel that considers challenges to OSHA citations, the Occupational Safety and Health Review Commission.

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

Who pays for testing?

Workers are expected to pay for their own testing. Senior administration officials said that because vaccines are “safe, free, and the most effective way for workers to be protected from Covid-19,” employers don’t need to pay for tests unless there are other laws or collective bargaining agreements requiring employers to foot the bill. The standard is unique because other OSHA rules require employers to pay for medical tests involving work-related health hazards such as lead exposure or hearing loss.

What about masks?

The standard requires employers to ensure that each worker who isn’t fully vaccinated is wearing a face mask. But OSHA doesn’t require employers to pay for “any costs associated with face coverings.” The agency will accept a wide range of masks, even homemade masks, if a mask completely covers the worker’s nose and mouth; is made with two or more layers of a breathable, tightly woven fabric; and is secured to the head with ties, ear loops, or elastic bands that go behind the head.

The standard is unusual because it exempts employers from providing protective clothing. OSHA in 2007 issued a rule declaring that, in general, employers must provide personal protective equipment to workers for free.

(Adds information on mask provisions in 10th and 11th paragraphs.)

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

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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