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The Biden administration unveiled a sweeping federal labor rule on Thursday, requiring private employers with at least 100 employees to assure that all of their employees are fully vaccinated against COVID-19 or submit to regular testing and wear a face mask. The new rule represents a virtually unprecedented government intervention between employers and the people they entrust to carry out their business every day. Here are the facts you need to know:
What does OSHA’s COVID-19 vaccination mandate require?
The Occupational Safety and Health Administration (OSHA) announced it is issuing an emergency temporary standard (ETS), which requires all employers with 100 employees or more to require that all workers be fully vaccinated against COVID-19 no later than January 4, 2022, or face stiff financial penalties.
Can a worker refuse to get vaccinated without losing his or her job?
The OSHA rule, which applies to most of the U.S. workforce, requires any employee who chooses not to get vaccinated to submit to weekly testing for COVID-19 and to “wear a face covering” while on the job. The rule also allows employees seeking an exemption for medical reasons, or who have a sincerely held religious objection, to apply for an exemption. OSHA instructs employers to deal with these requests on a case-by-case basis.
What is the government’s definition of “fully vaccinated”?
The government considers anyone fully vaccinated who has received two doses of either the Moderna or Pfizer-BioNTech mRNA vaccinations, or one dose of the Johnson & Johnson vaccination.
Does this OSHA ETS affect health care workers?
The Centers for Medicare and Medicaid Services (CMS) issued a separate rule on Thursday that requires any health care employee who works in a facility receiving Medicare or Medicaid funding to receive the COVID-19 vaccination. Unlike the OSHA rule, this mandate has no exception allowing for testing.
Who pays for the vaccinations or the testing?
The OSHA regulation requires employers to give unvaccinated workers paid time off to receive the shot(s) — which are available at no charge — as well as to recover from any side effects the vaccine may produce. Who pays for weekly COVID-19 tests is less clear. The Biden administration allows employers to force employees to get their own tests. Testing kits currently run between $11 and $15 each, so a worker could spend a minimum of $572 a year to remain in compliance with the Biden administration’s edict. National Public Radio said the move “appears designed to push workers to choose vaccinations over testing.”
What is the cost if employers refuse to comply with the mandates?
If employers of 100 employees refuse to comply with the OSHA mandate, the Biden administration may impose fines of $13,653 per violation—and $136,532 for “willful or repeated” violations.
Does this rule apply to all employees if their workplace has at least 100 workers?
No: remote workers and people who work outdoors or in isolation are exempted. OSHA states that its rule “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.”
How many people would these mandates affect?
Private businesses of the scale discussed in the ETS employ an estimated 84 million workers, according to the Biden administration. The CMS rule would apply to an estimated 17 million Americans who work in 76,000 health care facilities. With the administration’s other COVID-19 rules and regulations, roughly two-thirds of the U.S. workforce falls under a federal government COVID-19 vaccination mandate.
How many companies currently have vaccination mandates in effect?
It’s impossible to know, but a recent survey of more than 1,000 companies found that only 13% currently required all employees to take the shot, while 66% said their “employees are not required to be vaccinated.”
What is the deadline for compliance?
Employers have until January 4, 2022, to comply or face financial penalties.
Where can I read the exact wording of the OSHA ETS?
How does this rule apply to states that have banned vaccine or mask mandates, like Texas?
“The ETS preempts any state or local requirements that ban or limit an employer’s authority to require vaccination, face covering or testing,” according to Labor Secretary Marty Walsh.
How have state leaders responded to the mandate?
Legal action is a certainty. Texas Attorney General Ken Paxton (R) tweeted, “Biden just announced his plan to wield OSHA to mandate vaccines on private businesses. And I’m announcing my plan to sue him once this illegal, unconstitutional regulation hits the Federal Register.”
Biden just announced his plan to wield OSHA to mandate vaccines on private businesses. And I’m announcing my plan to sue him once this illegal, unconstitutional regulation hits the Federal Register.
— Texas Attorney General (@TXAG) November 4, 2021
Before its current iteration, Florida Governor Ron DeSantis (R) said, “We don’t live with a one-person rule in this country. We live in a constitutional system, [where] peoples’ rights are protected.” Arizona Governor Doug Ducey (R) released a statement calling the president’s mandate an “egregious, big government overreach” that robs Americans of their fundamental right to make health care decisions for themselves and their children. He went on to call it “dictatorial,” wrong,” and “un-American.” Oklahoma Governor John Stitt (R) put out a statement saying, “As long as I am governor, there will be no government vaccine mandates in Oklahoma.”
What legal challenges lie ahead for this rule?
The Biden administration insists it has authority to impose a federal vaccine mandate on private employers. “This rule is well within OSHA’s authority under the [1970 Occupational Safety and Health] Act, and consistent with OSHA’s requirements to protect workers” from safety hazards like infectious diseases, Secretary Walsh told Fox News on Thursday. But a Congressional Research Service report released in April found that the federal government had exceedingly slim statutory or constitutional authority to impose a vaccine mandate, a power usually exercised by state and local officials. The executive branch can require immigrants to prove they are vaccinated and it can impose vaccine mandates on members of the armed forces.
In September, the attorneys general of 24 states wrote a letter to President Biden, calling his then-proposed vaccine mandate “disastrous,” “counterproductive,” “a threat to individual liberty,” “a public health disaster,” and “illegal.” The letter, which previews legal objections likely to be made in court, closes by promising to “seek every available legal option to hold you accountable and uphold the rule of law.”
The Daily Wire Files Lawsuit Against Administration
On Thursday, The Daily Wire filed a lawsuit against the federal government over the OSHA mandate. The Daily Wire reported:
The Dhillon Law Group, Inc. and Alliance Defending Freedom filed the legal challenge on behalf of The Daily Wire in the U.S. Court of Appeals for the 6th Circuit. The mandate requires all private employers of 100 or more employees to force unvaccinated employees to receive a COVID-19 vaccine, be subject to weekly testing, or lose their job. Attorneys for The Daily Wire will also file an emergency motion to stay the mandate.
“The Daily Wire will not comply with President Biden’s tyrannical vaccine mandate, and we are suing the Biden Administration to put a stop to their gross overreach,” said Daily Wire Co-Founder and Co-CEO Jeremy Boreing. “President Biden, the federal government, social media, and the establishment media have conspired to rob Americans of their freedoms in the name of public health. They have broken faith with the American people through conflicting messaging, false information, and by suppressing data and perspectives with which they disagree.”
The lawsuit alleges that the Biden Administration lacks constitutional and statutory authority to issue the employer mandate, and that the mandate failed to meet the requirements for issuing a rule taking effect immediately without the normal process of considering public comments.
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.