What Biden's OSHA Vaccine Mandate Could Mean for Business

Who has to get vaccinated and what happens if they don't

President Joe Biden announced on Nov. 4, 2021, new steps designed to fight COVID-19 including a vaccination mandate for up to 80 million American workers. The mandate, in the form of an Emergency Temporary Standard (ETS), would have applied to companies with 100 or more employees and was to be imposed by the Occupational Safety and Health Administration (OSHA), part of the Department of Labor (DOL).

Key Takeaways

  • President Joe Biden's Nov. 4, 2021, vaccine mandate would have forced millions under a vaccine mandate, notably for businesses with over 100 employees.
  • However, a Jan. 13, 2022, United States Supreme Court ruling shot down the vaccine mandate.
  • The mandate, however, still stands for health care facilities receiving Medicare and Medicaid funds.

Under the ETS, affected workers would have to be vaccinated against COVID-19 or face weekly testing. Workers would receive paid time off to be vaccinated.

On Jan. 13, 2022, the United States Supreme Court blocked the Biden administration from enforcing a vaccine or testing mandate for large employers. A limited vaccine mandate was allowed to stand, however—health care workers at facilities receiving federal money will still be required to get COVID-19 vaccines (although medical and religious exemptions will be allowed).

The Supreme Court blocked the Biden administration COVID-19 vaccine mandate for large businesses on Jan. 13, 2022, but a mandate for health care workers at federally funded facilities was upheld.

Which Businesses Would Have Been Impacted?

If your business employs fewer than 100 workers, the OSHA vaccination mandate did not affect you in the first place. However, depending on the type of business you own or with whom you do business, you may be impacted by other vaccine mandates. This could include the following businesses or organizations, regardless of size:

  • Nursing homes, hospitals, and other facilities that receive Medicare and Medicaid funds
  • Facilities that house Head Start programs

The vaccine mandates were expected to impact 100 million workers, roughly two-thirds of the American workforce. "Vaccination requirements are good for the economy," the president said in remarks announcing the mandate. "They not only increase vaccination rates but they help send people back to work—as many as 5 million American workers. They make our economy more resilient in the face of COVID and keep our businesses open."

However, “the challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,” said the Supreme Court’s ruling. “At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”

Additional Details About the ETS

Here were the basic facts of the vaccine ETS:

  • The ETS mandate would have affected private companies with 100 or more employees firm or corporate-wide.
  • Part-time employees count: If a company has 50 full-time and 50 part-time employees, it has 100 employees and would have been subject to the ETS.
  • Independent contractors would not have been counted as employees.
  • Temporary and seasonal workers would have counted as employees if hired by the company.
  • Minors would count if they are employees (and may have required parental consent to be vaccinated).
  • Employees who work from home, don't report to a worksite, or who work outdoors would not have been subject to the ETS.
  • Exemptions would have been granted for anyone who is medically exempted or has an accommodation under federal civil rights law.
  • The ETS would have preempted state and local laws.
  • The ETS would not have required employers to pay for testing.

What Happens If You Don't Comply?

If a workplace had refused to follow the mandate, once it had gone into effect, it would have been subject to OSHA fines as follows:

  • Up to $13,653 for each violation of the ETS.
  • Willful or repeated violations are subject to fines of $136,532 per violation.

Is the Mandate Legal?

OSHA has the power to issue an ETS until a permanent standard is adopted, when “workers are in grave danger due to exposure to toxic substances or agents.” The agency, which is responsible for workplace safety, has issued other pandemic-related guidelines. One in June 2021 required employers in the healthcare business to provide protective equipment to workers.

Whether the COVID-19 risk and the vaccines to fight it come under OSHA jurisdiction were the crux of the challenges against the vaccine mandate. Some of those who said the mandate is not legal assert that COVID-19 is not a toxic substance or agent, and is therefore not covered by OSHA regulations.

Others have cited a 1905 Supreme Court decision in Jacobson v. Massachusetts, in which the court decided that a man could be required to be vaccinated during the then-ongoing smallpox epidemic.

Ultimately, the Supreme Court ruled that a broad vaccine mandate covering large employers was not legal. However, the mandate for health care workers of facilities receiving government funding stands. These are health care facilities and hospitals that participate in the Medicare and Medicaid programs.

What's Next?

The vaccine mandate laid out by the Biden administration is effectively dead. “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” said the high court's ruling.

President Biden urged businesses and states to increase voluntary vaccination requirements for employees and customers. “The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy,” Biden said. Certain large companies in the U.S. have already implemented their own vaccine mandate.

What Is the Current Vaccine Mandate?

The Supreme Court shot down a COVID-19 vaccine mandate for large employers on Jan. 13, 2022, but upheld a mandate for health care workers of medical facilities that are federally funded (i.e. take Medicare or Medicaid payments).

Is There a Vaccine Mandate for Government Contractors?

A recent Georgia district court ruling found that President Biden's issue for government contractors was not valid. Biden had issued a mandate on Sep. 24 that would have covered 3.5 million government workers.

How Does the Health Care Worker Vaccine Mandate Work?

The mandate covers virtually all health care workers in the country. It covers hospitals and medical facilities receiving federal Medicare or Medicaid funding. This mandate does have medical and religious exemptions.

Article Sources
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  1. The White House. "Statement by President Joe Biden on Vaccination Requirements."

  2. Federal Register. "COVID-19 Vaccination and Testing; Emergency Temporary Standard."

  3. Supreme Court of the United States. “Nos. 21A244 and 21A247.”

  4. Supreme Court of the United States. “Nos. 21A240 and 21A241.”

  5. Centers for Medicare and Medicaid Services. "Biden-Harris Administration Takes Additional Action to Protect America’s Nursing Home Residents from COVID-19."

  6. Centers for Medicare and Medicaid Services. "Biden Harris Administration Issues Emergency Regulation Requiring COVID-19 Vaccination for Haelth Care Workers."

  7. U.S. Dept. of Health and Human Services. "Vaccination for Head Start Staff."

  8. Occupational Safety and Health Administration. "ETS: Frequently Asked Questions."

  9. Occupational Safety and Health Administration. "OSHA Penalties."

  10. Occupational Safety and Health Administration. "OSHA Standards Development."

  11. Occupational Safety and Health Administration. "Emergency Temporary Standard: COVID-19 Healthcare ETS."

  12. Occupational Safety and Health Administration. "Healthcare Workers and Employers."

  13. Liberty Justice Center. "Here are the Arguments that Persuaded the 5th Circuit to Block OSHA's Vaccine Mandate for Private Employers."

  14. Justia U.S. Supreme Court. "U.S. Supreme Court: Jacobson v. Massachusetts, 197 U.S. 11 (1905)."

  15. The White House. "Statement by President Joe Biden On the U.S. Supreme Court’s Decision on Vaccine Requirements."

  16. United States District Court for the Southern District of Georgia. "The State of Georgia, et. al., Plaintiffs v. Joseph R. Biden, in His Official Capacity as President of the United States, Defendants."

  17. Safer Federal Workforce. "COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors," Page 1.

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