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
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
|applies to employers in all workplaces that are underOSHA’sauthorityandjurisdiction,including|
|industries as diverse as manufacturing, retail, delivery services, warehouses, meatpacking,|
|agriculture, construction, logging, maritime, and healthcare. Within these industries, all employers that have a total of at least 100 employees firm-|
|or corporate-wide, at any time the ETS is in effect, are covered.|
| Workplaces not covered by the ETS. This standard does not apply to workplaces covered|
|under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings where employees provide healthcare|
|services or healthcare support services when subject to the requirements of the Healthcare ETS (29 CFR 1910.502).|
Section VI. of the ETS preamble.
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
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.
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).