Employers must require COVID-19 shots or tests by January under federal rule

OSHA could issue fine to businesses for each violation

A COVID-19 vaccination record card. Proof of vaccination or negative test results will be needed from workers at businesses that employ 100 workers or more under a new OHSA rule.  (Caroline Brehman/CQ Roll Call file photo)
A COVID-19 vaccination record card. Proof of vaccination or negative test results will be needed from workers at businesses that employ 100 workers or more under a new OHSA rule. (Caroline Brehman/CQ Roll Call file photo)
Posted November 4, 2021 at 8:45am

People who work at large businesses will need to show their vaccination cards or routinely test negative for COVID-19 under new Occupational Safety and Health Administration rules designed to curb the pandemic that President Joe Biden first previewed in September.

Businesses with 100 workers or more will be required to verify all employees have been fully vaccinated or test negative for COVID-19 each week by Jan. 4, according to senior administration officials. As many as 84 million people may fall under the new requirements. 

Employers must give their workers paid time off to get fully vaccinated and sick leave to recoup from expected side effects like fatigue. Businesses face a Dec. 5 deadline to ensure unvaccinated employees wear masks and provide for paid time off to get vaccinated.

The Biden administration also announced a separate rule to require workers in health care settings to get a COVID-19 vaccine as a condition of participating in Medicare and Medicaid.

The new requirements come as the weather chases people inside and families prepare to gather for the winter holidays, two factors that could drive COVID-19 cases and deaths back up.

Just 78 percent of eligible people are vaccinated nationwide, a milestone the administration had hoped to reach months ago. With millions of people unvaccinated this summer, the virus had plenty of opportunity to sicken people and mutate, infectious disease experts say. 

“There are still so many workers who are not protected and remain at risk of being seriously ill or dying,” a senior administration official told reporters Wednesday evening. 

OSHA could issue an approximate $14,000 fine to an employer for each violation of the rules, though those fines may be significantly ratcheted up under a massive social spending bill being negotiated in Congress.

OSHA won't be empowered to begin issuing fines until early January, giving major businesses nine more weeks to comply with the regulations.

The delay could mitigate some of the new rule’s impact as the virus continues to circulate this fall and winter. 

Major employer groups had pushed to delay the new regulations until next year, arguing an earlier deadline could lead to labor shortages during the winter holiday crush. Many groups opposed have met with administration officials in recent weeks. 

"It's totally contradictory to what we've seen from those companies that have implemented vaccine mandates," said Jordan Barab, a former deputy assistant secretary at OSHA and congressional labor policy adviser. “We think there are actually a lot of workers who are afraid to come back and be infected at work, and this should ease many of their worries.”

The new OSHA regulation could prevent 250,000 hospitalizations and several thousand deaths, according to the agency's models. Senior administration officials also hope the new requirements will entice as many as 5 million people concerned about infection back into the workforce. 

The OSHA and CMS rules are the latest action on a slate of vaccine initiatives tied to employment Biden announced in the late summer and fall affecting up to 100 million people. As vaccinations continued to stagnate despite splashy incentives like state lotteries, and amid a crushing delta surge, Biden signaled he was more open to resorting to sticks rather than carrots. 

In September, Biden announced the new plans for major employers and health care settings, as well as federal workers and contractors, who have until about Dec. 8 to receive a shot.

“This is not about freedom or personal choice. It’s about protecting yourself and those around you — the people you work with, the people you care about, the people you love,” Biden said at the time. 

Health care rule

The Centers for Medicare and Medicaid Services will hold a listening session with health care facilities to brief them on the new health care rule, according to a senior administration official. 

CMS could issue civil penalties, deny Medicare or Medicaid payment to facilities, or terminate them from the federal programs “as a last resort,” the official said. But CMS plans to cooperate with facilities to try to bring them into compliance first. 

Earlier, in August, the president announced he would require nursing homes to vaccinate their workers under Medicare and Medicaid.

Nursing home groups had called for a broader health care rule to help curb an expected exodus of staffers to hospitals and other medical providers not included in the mandate. 

Nationally, just 71 percent of nursing home workers are vaccinated per facility, according to federal data.  

“Covid-19 hit our nursing homes hard,” said Anne Barden, a cook and dietary aide at the Trinity Hill Care Center nursing home in Hartford, Conn., and a member of SEIU District 1199 New England, in a recent call with reporters. 

“Half of our residents got sick, and many of them died,” said Barden. “At one time half of us were sick or under quarantine." She said they were not given proper protective equipment: "We were sometimes given one mask to wear for several days.”

Conditions improved after the facility’s owner was levied a $60,000 fine, Barden said. 

“You can’t put a price on human life, but without the fines, our boss would have had no incentive to do anything for our well being,” said Barden.

GOP opposition

Opposition to OSHA regulations has become a clarion call for politicians on the right, who have leveraged the policy in culture wars and pilloried it as a vaccine mandate that tramples on individual freedom.

A fight is brewing between the Biden administration and Republican leaders like Texas Gov. Greg Abbott and Florida Gov. Ron DeSantis over their attempts to block employers from implementing the federal mandates.

Twenty attorneys general have launched legal challenges to the requirement that federal contractors require vaccinations, and more legal challenges are likely to be kicked up by the new mandate for large employers. 

Former OSHA officials are confident the regulations will be upheld in the courts. 

“It’s justified by the Occupational Health and Safety Act which … enables the agency to issue emergency temporary standards where there is a grave danger to workers and where that standard is necessary to protect employees,” said Barab. “Governors and other state officials have no authority to ignore federal laws or regulations they don’t like.”

Thirty-nine Republican senators announced Wednesday that they would push to nullify the OSHA regulations through a rarely used joint resolution of disapproval. But that effort is likely to fall short while Democrats are in the majority in both the House and Senate. 

Biden announced a separate comprehensive emergency temporary standard requiring ventilation, social distancing, personal protective equipment and paid sick leave in January on one of his first days in office. But the regulation was scuttled under pressure from major employer groups like the Chamber of Commerce and as cases dropped before the delta surge.