Feds Poised to Push Employers to Vaccinate: What This Means for States

By Josh Cunningham | Sept. 22, 2021 | State Legislatures Magazine | Print

When President Joe Biden released his Path Out of the Pandemic plan earlier this month, he announced plans to require larger employers to adopt so-called “vaccine or test” policies at the workplace.

Biden indicated the yet-to-be-released emergency rule from the Occupational Safety and Health Administration (OSHA) would cover companies employing 100+ workers. Employees would have to provide proof of having received a COVID-19 vaccine to their employer or submit weekly negative COVID-19 test results.

Some workers may be exempted due to medical or religious reasons. Employers who fail to meet the requirement may face fines up to $14,000 per violation.

Despite past pledges against nationwide vaccine mandates, Biden cited a sharp rise in COVID-19 cases and the nearly 80 million eligible, but unvaccinated, Americans as the reasoning for requiring private sector employers to adopt workplace vaccination policies.

The source of Biden’s 80 million unvaccinated figure is unclear. In September, the CDC announced that 75% of U.S. adults had received at least one vaccine dose.  

Evidence exists showing vaccine mandates may be an effective way to increase immunization. They have long been a norm in education and health care settings for diseases like the flu, meningitis and hepatitis. Hundreds of universities across the country already mandate that students receive a COVID-19 vaccine.

Several long-term care providers have imposed COVID-19 vaccine mandates among their employees with some achieving vaccine rates upwards of 90-100%. Numerous large employers have announced similar vaccine-or-test policies among their employees as well.

All Eyes on OSHA

Authorized under the federal Occupational Safety and Health Act, OSHA seeks to “assure safe and healthful working conditions for working men and women.” The agency is well known in workplaces across the country for its health and safety standards and enforcement and has played a critical role in helping employers safely reopen during the COVID-19 pandemic.

While most have heard of OSHA, its process for adopting standards may be less widely known. Interestingly, OSHA is notorious for its slow rulemaking. A 2012 review by the Government Accountability Office found that the average OSHA health and safety standard took over seven years to develop and issue.

However, the agency has a tool in its arsenal to expedite this process called an Emergency Temporary Standard (ETS). This is how the Biden administration intends to promulgate the COVID-19 vaccine requirement. Regardless, OSHA standards are subject to judicial review and can be challenged in court by any individual “adversely affected” by the new standard. Such a challenge is reviewed by the U.S. Court of Appeals.

Emergency Temporary Standards

OSHA has a limited history of using its ETS authority. Prior to the pandemic, the most recent proposed ETS was in 1983 in response to concerns over asbestos in the workplace. The ETS was ultimately struck down by the courts. In total, OSHA has issued 10 ETSs. Of those, five have been stayed or vacated by the courts.

To implement an ETS, OSHA must meet two key criteria:

  1. Employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.
  2. Such emergency standard is necessary to protect employees from such danger.  

In other words, OSHA must show there is a grave danger to employees and that the proposed ETS is necessary to protect workers from that danger.

In the context of Biden’s proposed vaccine mandate, OSHA will likely need to show that COVID-19 in the workplace poses a grave danger to workers and that making large employers mandate proof of a vaccine or weekly negative tests from their employees is necessary to protect those employees from contracting COVID-19 at work. 

To date, OSHA has not released any proposed language or specifics for the vaccine ETS. Many questions remain, including how factors such as high workplace vaccination rates, prior infection/natural immunity, remote work options and other existing workplace safety standards will impact the “necessity” of requiring employee vaccinations or testing.

In June 2021, OSHA issued an ETS related to COVID-19 and health care workers. In the standard, OSHA stops short of requiring health care workers be vaccinated. In fact, OSHA provides exemptions for health care facilities where all workers are vaccinated and where individuals with possible COVID-19 are prohibited entry. OSHA also exempts from some of the requirements in the standard, “fully vaccinated employees in well-defined areas where there is no reasonable expectation that individuals with COVID–19 will be present.”

Upon issuing an ETS, OSHA has six months to adopt a corresponding permanent standard using the regular rulemaking process—a deadline that given OSHA’s slow rulemaking history may be challenging to meet. A recent analysis from the Congressional Research Service notes that an ETS remains in effect until superseded by a permanent standard and that it remains unclear if OSHA has the authority to extend an ETS beyond the six-month deadline.

What This Means for States

If OSHA publishes a vaccine-related ETS, the impact it will have on states varies greatly. The 26 states and two territories operating under state OSHA plans will likely feel the biggest impact. For these states, their OSHA plans cover state and local government workers, including public school workers.

OSHA requires these states to adopt a similar (although not identical) ETS into their state plan within 30 days. In other words, these states would likely have to adopt a vaccine-or-test policy for most state and local government employees. Biden proposed that testing-related costs would be the responsibility of employers and could be passed down to the employees. This creates a potential federal unfunded mandate on state and local governments if required to pay for weekly employee COVID-19 tests. Additionally, state and local governments would bear the cost of creating and maintaining mechanisms for government employees to submit proof of vaccination and test results.

For the 24 states not operating under a state OSHA plan, the prospective ETS would not apply to state and local government employers as OSHA has no jurisdiction over them. It would, however, still apply to applicable private sector employers in all 50 states and territories. 

Some states have taken action to limit vaccine mandates. Montana, for example, enacted legislation banning the use of vaccine mandates as a condition of employment defining such a move as employment discrimination. ArizonaTennessee and Utah operate OSHA state plans and have also enacted legislation prohibiting state and local government agencies from requiring individuals to receive a vaccine, including as a condition of employment by the government. The federal ETS would preempt these new state laws.

Legal Challenges from States Certain

Shortly after Biden’s announcement, numerous governors proclaimed their objection to the proposed mandate. Additionally, 24 state attorneys general announced plans to take the matter to the courts. While there is not yet a policy in place to challenge, the U.S. Department of Labor, which oversees OSHA, has indicated to NCSL that the ETS will likely be published in October or November.

NCSL will continue tracking developments on Biden’s proposed COVID-19 vaccine ETS and other employer vaccine mandate actions. NCSL created a resource for states highlighting various types of COVID-19 vaccine policies in states. NCSL also authored the Vaccine Policy Toolkit for states for information about vaccines and immunizations more generally. Please reach out to NCSL for help in navigating these important issues in your states. 

Josh Cunningham is a project manager in NCSL’s Employment, Labor and Retirement Program.