(READ) Jan. 4 deadline for Biden administration Covid-19 vaccine mandate

In September, the Biden Administration announced a Covid-19 vaccine mandate for private sector employers with over 100 hundred employees, which covers about two-thirds of the American workforce.

But weeks have gone by with only speculation about what, exactly, would be included.

Today, some specific details of the much anticipated plan have finally been released. The mandate takes effect January 4. It will include exceptions and alternatives, such as testing options.

The details claim that workers who are unvaccinated face “grave danger” in the workplace; a claim that scientists say is untrue for almost everyone since:

• CDC says vaccinated people can catch, spread and get sick with Covid
• CDC says the vast majority of people infected with Covid have mild or no symptoms
• CDC says, statistically, virtually everybody recovers from Covid
• It’s estimated that most of the U.S. population has natural immunity from Covid-19, though CDC is keeping its estimates since May 29 secret.

Employers with fewer than 100 workers are exempt. OSHA did not explain how it reconciles its “grave danger” claim with the exemption for employers on the basis of the difficulty they would have implementing mandates.

The vaccine mandate will be enforced by the Occupational Safety and Health Administration (OSHA) through a measure known as an Emergency Temporary Standard (ETS). The ETS was made public this morning and some of the key highlights are noted below:

• Unvaccinated employees must be tested once per week and wear face coverings inside the workplace
• Employees working remotely or who work in the outdoors, will not be subject to the testing requirements
• Employers will not be required to pay for testing in some cases
• Mandatory masking of unvaccinated employees effective December 4
• Mandatory testing effective January 4

Typically, the federal government does not have the power to force vaccination; that power has previously been left up to states. The Biden administration argues because the mandate is implemented through OSHA, it escapes the normal restrictions against federal vaccine mandates.

Read OSHA’s full ETS summary here and pasted below.

COVID-19 was not known to exist until January

2020, and since then nearly 745,000 people, many

of them workers, have died from the disease in the

U.S. alone. At the present time, workers are

continually becoming seriously ill and dying as a

result of occupational exposures to COVID-19.

OSHA expects that the Vaccination and Testing ETS

will result in approximately 23 million individuals

becoming vaccinated. The agency has

conservatively estimated that the ETS will prevent

over 6,500 deaths and over 250,000

hospitalizations. In issuing the ETS, OSHA has made

several important determinations:

enforcement experience during the pandemic to

date, that continued reliance on existing standards

and regulations, the General Duty Clause of the

OSH Act, and workplace guidance, in lieu of an ETS,

is not adequate to protect unvaccinated employees

from COVID-19. Thus, OSHA has also determined

that an ETS is necessary to protect unvaccinated

workers from the risk of contracting COVID-19 at

work. The evidence for the need for the ETS is in

Section III.B. of the ETS preamble.

The ETS is Limited to Employers with 100 or

More Employees:

In light of the unique occupational safety and health

dangers presented by COVID-19, and against the

backdrop of the uncertain economic environment of

a pandemic, OSHA is proceeding in a stepwise

fashion in addressing the emergency this rule

covers. OSHA is confident that employers with 100

or more employees have the administrative capacity

to implement the standard’s requirements

promptly, but is less confident that smaller

employers can do so without undue disruption.

OSHA needs additional time to assess the capacity

of smaller employers, and is seeking comment to

help the agency make that determination.

Nonetheless, the agency is acting to protect workers

now in adopting a standard that will reach two-

thirds of all private-sector workers in the nation,

including those working in the largest facilities,

where the most deadly outbreaks of COVID-19 can

occur. Additional information on the scope of the ETS is found in Section VI.B. of the ETS preamble.

Unvaccinated Workers Face Grave Danger:

Unvaccinated workers are much more likely to

contract and transmit COVID-19 in the workplace

than vaccinated workers. OSHA has determined that

many employees in the U.S. who are not fully

vaccinated against COVID-19face grave danger from

exposure to COVID-19 in the workplace. This finding

of grave danger is based on the severe health

consequences associated with exposure to the virus

along with evidence demonstrating the

transmissibility of the virus in the workplace and the

prevalence of infections in employee populations.

The evidence for the finding of a grave danger is in

Section III.A. of the ETS preamble.

An ETS is Necessary:

Workers are becoming seriously ill and dying as a

result of occupational exposures to COVID-19, when

a simple measure, vaccination, can largely prevent

those deaths and illnesses. The ETS protects these

workers through the most effective and efficient

control available – vaccination – and further

protects workers who remain unvaccinated through

required regular testing, use of face coverings, and

removal of all infected employees from the

workplace. OSHA also concludes, based on its

The ETS is Feasible:

OSHA has evaluated the feasibility of this ETS and

has determined that the requirements of the ETS

are both economically and technologically

feasible. The evidence for feasibility is found in

Section IV. of the ETS preamble. The specific

requirements of the ETS are outlined and described

Understanding the ETS

in the Summary and Explanation, which is in

Section VI. of the ETS preamble.

TheETSPreemptsStateandLocalLaws:

OSHA intends the ETS to address comprehensively

the occupational safety and health issues of

vaccination, wearing face coverings, and testing for

COVID-19. Thus, the standard is intended to

preempt States, and political subdivisions of States,

from adopting and enforcing workplace

requirements relating to these issues, except under

the authority of a Federally-approved State Plan. In

particular, OSHA intends to preempt any State or

local requirements that ban or limit an employer

from requiring vaccination, face covering, or

testing. Additional information on the preemption

of State and local laws is found in Section VI.A. of

the ETS preamble.

The ETS Also Serves as a Proposed Rule:

Although this ETS takes effect immediately, it also

serves as a proposal under Section 6(b) of the OSH

Act for a final standard. Accordingly, OSHA seeks

comment on all aspects of this ETS and how it

would be adopted as a final standard. OSHA

encourages commenters to explain why they

prefer or disfavor particular policy choices, and to

include any relevant studies, experiences,

anecdotes or other information that may help

support the comment. Stakeholders may submit

comments and attachments, identified by Docket

No. OSHA-2021-0007, electronically at

www.regulations.gov. Follow the instructions

online for making electronic submissions.

OSHA May Revise or Update the ETS:

OSHA will continue to monitor trends in COVID-19

infections and death as more of the workforce and

the general population become fully vaccinated

against COVID-19 and as the pandemic continues

to evolve. Where OSHA finds a grave danger from

the virus no longer exists, or new information

indicates a change in measures necessary to

address the grave danger, OSHA may update this

ETS, as appropriate.

This fact sheet highlights some of the additional requirements of the ETS; employers should consult the standard for full details. Read the full text of the ETS at: www.osha.gov/coronavirus/ets2.

•   Employees of covered employers not subject to the requirements. The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.
•   Effective Dates. The ETS is effective immediately upon publication in Federal Register. To comply, employers must ensure provisions are addressed in the workplace by the following dates:

o 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s)

o 60 days after publication: Testing for employees who have not received all doses required for a primary vaccination

How to Protect Workers from COVID-19

The ETS establishes minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace. The key requirements of the ETS are:

Employer Policy on Vaccination. The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing

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employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.

Determination of employee vaccination status. The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

Employer support for employee vaccination. The ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following eachdose.

COVID-19 testing for employees who are not fully vaccinated. The ETS requires employers to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). The ETS does not require employers to pay for any costs associated with testing. However employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. In addition, nothing prohibits employers from voluntarily assuming the costs associated with testing.

Employee notification to employer of a positive COVID-19 test and removal. The ETS requires employers to: (1) require employees to promptly provide notice when they receive a positive COVID- 19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; (3) keep removed employees out of the workplace until they meet criteria for returning to work.

Face coverings. The ETS requires employers to ensure that each employee who is not fully vaccinated wears a face covering when indoors or

when occupying a vehicle with another person for work purposes, except in certain limited circumstances. Employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (e.g., interfering with the safe operation of equipment).

Information provided to employees. The ETS requires employers to provide employees the following in a language and at a literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19Vaccines”; (3)informationabout protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Reporting COVID-19 fatalities and hospitalizations to OSHA. The ETS requires employers to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

Availability of records. The ETS requires employers to make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

Additional Information

Visit www.osha.gov/coronavirus for additional information on:

 COVID-19 Laws and regulations
 COVID-19 Enforcement policies
 Compliance assistance materials and guidance  Worker’s Rights (including how/when to file a

safety and health or whistleblower complaint).