The Biden administration said on Thursday that large companies have until Jan. 4 to ensure that their workforces are fully vaccinated under a sweeping new coronavirus health measure that will cover 84 million private sector workers.
The plan was first announced in September by President Biden, who directed the Labor Department to invoke its emergency powers over the safety of workplaces to require businesses with 100 or more employees to mandate vaccinations for all employees. Workers who refuse to get vaccinated must undergo weekly testing.
Also on Thursday, the administration unveiled new emergency regulations for health care workers, including those at nursing homes caring for elderly and sick residents who are at high risk for infection. All 17 million workers at health care facilities receiving either Medicare or Medicaid funding must be vaccinated by Jan. 4.
Mr. Biden has previously imposed vaccine requirements on federal workers and companies that receive federal contracts.
But the new rule covering employees of all large private businesses is a more dramatic use of his executive power, prompting some state officials to criticize the move and threaten to try to stop it.
Some major companies including Tyson Foods and United Airlines were quick to embrace mandates, spurred by the president’s announcement in September. But many others have held off, citing the need for clarification from the government on a range of questions, including who will pay for testing and whether the rule applies to employees who work at home.
Many of those questions are answered by the new requirements and guidance published by the Occupational Safety and Health Administration on Thursday. Companies that had been waiting for the final rules to be made public are expected to begin announcing mandates, experts said.
Among the businesses that have yet to issue a requirement for all employees are the nation’s largest employer, Walmart, which is mandating vaccines mainly for its corporate staff members, and JPMorgan Chase, which has more than 120,000 employees in offices and bank branches across the United States and is encouraging but not broadly mandating vaccinations.
In a Mercer poll of 1,088 companies conducted on Oct. 4, roughly 13 percent of respondents said they were requiring all employees to be vaccinated, regardless of work location. Eleven percent said they were requiring only those coming to the office to be vaccinated.
According to OSHA’s new requirements, workers are considered fully vaccinated if they’ve received two doses of the Pfizer-BioNTech or Moderna vaccines, or one dose of the Johnson & Johnson vaccine. Companies must provide paid time off for their employees to get vaccinated and sick leave for side effects as needed. And employers are not required to either pay for or provide tests, though some may still be compelled to do so by other laws or agreements with unions.
Companies that fail to comply with the rule may be subject to fines, depending on how frequently they violate it and whether violations are intentional, a White House official said. An OSHA penalty is typically $13,653 for every serious violation.
Over the past month, the Department of Labor received feedback on the rule from trade groups, including the U.S. Chamber of Commerce, as well as executives from UPS, the Walt Disney Company, Fidelity Investments and many others. They have voiced concerns about cost, logistics and potential impact on employees.
Requiring vaccines or regular testing “could significantly diminish the labor pool, particularly in some geographic areas and amongst some demographics in which vaccine hesitancy is widespread,” the National Retail Federation wrote to OSHA last month. “NRF members, like employers across the economy, are already struggling to find workers.”
The January deadline allows retailers and logistics companies, both of which are strapped for employees, to get through the holiday shopping season before instituting the requirements. The same deadline applies to federal contractors, who are subject to their own stricter rules, and to health care workers covered by new emergency regulations.
Companies that have already mandated vaccines, including 3M, Procter & Gamble, IBM and the airlines American, Alaska and JetBlue, have not seen a large number of employees quit over the pressure to get inoculated, though a small minority of workers have given up their jobs.
United Airlines, one of the first major air carriers to require shots for its 67,000 U.S. employees, said in September that more than 99 percent of its employees were vaccinated. Tyson Foods, which set a Nov. 1 deadline, said that more than 96 percent of employees were vaccinated, compared with less than 50 percent before it announced its mandate in August.
Employers covered by the rule must ensure their unvaccinated workers are masked, a requirement that must be enforced starting Dec. 5. They will be required to maintain reporting and record-keeping as detailed in the OSHA rules. OSHA will help companies understand how to comply with the new requirements by distributing fact sheets, sample methods and other plans, a White House official said. It will also provide companies with a recorded webinar on the rule’s details, along with recommendations for enacting them.
Legal experts say OSHA has the authority to introduce a vaccine mandate, and that its standards pre-empt the existing rules of state governments, except in states that have their own OSHA-approved workplace agencies. (About half do.) Those state agencies, which OSHA monitors, are required to enact a rule that is at least as effective as the OSHA rule.
The administration drafted the OSHA guidelines with potential challenges in mind. Attorneys general in at least 24 states have threatened to sue. Montana has outlawed employer vaccine mandates, and Gov. Asa Hutchinson of Arkansas allowed a law to go into effect requiring that employers who mandate vaccines allow for exemptions. Gov. Greg Abbott of Texas issued an executive order banning private employers from making vaccine mandates.
So far, efforts to challenge vaccine mandates have fallen short. The Supreme Court last Friday refused to block Maine’s requirement that health care workers be vaccinated against the coronavirus notwithstanding their religious objections. A federal judge in Boston denied efforts to overturn a vaccination mandate for 1,600 state executive branch employees
Vaccination requirements are not a new phenomenon in the United States, but such requirements in the workplace are less tested than those in schools and the military. And some companies might look to legal challenges as a way to delay creating a vaccine or testing requirement.
Some companies have already taken a stance on other required coronavirus precautions. In-N-Out, the popular burger chain in California, was forced to close its only San Francisco outlet after failing to comply with the city’s requirement that all restaurants check the vaccine cards of indoor diners.
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