biden osha vaccine mandate

President Joe Biden encouraged states and businesses in October to support vaccine mandates. (Drew Angerer/Getty Images)

OSHA’s Vaccine-or-Test Mandate for Large Employers Faces Pushback

By Josh Cunningham | Nov. 8, 2021 | State Legislatures News | Print

The Occupational Safety and Health Administration has published its much-hyped emergency temporary standard mandating that all employers with 100 or more workers require their employees to receive a COVID-19 vaccine or submit weekly negative test results. Those who do not show proof of a vaccination are also required to wear masks in the workplace.

OSHA states the purpose of the mandate, issued Nov. 4, is to “protect unvaccinated workers at large employers from the risks of contracting COVID-19 by strongly encouraging vaccination.” Covered employers must comply with the new standard beginning Jan. 4. The new standard will have a significant impact on states and faces certain legal challenges.

What’s in the Mandate?

The details and supporting argument for OSHA’s vaccine standard are explained in a nearly 500-page document published in the federal register. Federal law allows OSHA to issue emergency standards if two conditions are met:

  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 standard is necessary to protect workers.

There are some exceptions to the mandate, however. Workers already covered under the more stringent vaccine mandate for federal contractors must still comply with that executive order. Additionally, those who work remotely, in a workspace without others present and those who work exclusively outdoors are exempt. Federal law also allows for exemptions based on deeply held religious beliefs and documented medical concerns. Notably, OSHA explains that having immunity to COVID-19 due to prior infection does not exempt a covered employee from the mandate.

Impact on States

The new emergency standard will impact states in several ways. First, OSHA makes it clear that it preempts state and local laws that limit the use of vaccine and mask mandates. OSHA notes that “states and localities had taken increasingly divergent approaches to workplace protections against COVID-19, making it clear that a federal standard was needed to ensure sufficient protection in all states.”

OSHA identifies several state legislative and executive actions that it deems as “inconsistent state policies” that “prevent employers from implementing the most efficient and effective method for protecting workers from the hazard of COVID-19.”  

The states specifically mentioned are Arizona, Arkansas, Florida, Montana and Texas.

The 26 states and two U.S. territories operating on OSHA-approved workplace health and safety plans are required to develop a vaccine or test policy for state employees. Government employees of the remaining 24 states and three U.S. territories are not subject to OSHA’s jurisdiction.

The states with OSHA state plans are not immediately bound by the emergency standard. Each is required within 30 days to develop a standard that is at least as effective as the OSHA’s. The consequences for not complying within the deadline are not completely clear; however, OSHA recently issued a notice to Arizona, South Carolina and Utah indicating they are at risk of losing their OSHA state plan approval for not adopting a standard in response to a July 2021 emergency standard on health care facilities.  

At least four states—Florida, Texas, Tennessee and Wyoming—have addressed the expected OSHA emergency standard in special legislative sessions.

Legal Challenges Emerge

Over half the states have already filed lawsuits against OSHA challenging the emergency standard. Federal law allows these challenges to go directly to the U.S. Court of Appeals. The lawsuits primarily challenge OSHA’s authority to preempt state public health policy. Two days after publication, the 5th U.S. Circuit Court of Appeals issued a temporary halt to implementation pending further litigation.

Not Just OSHA

The Centers for Medicare and Medicaid Services also issued an emergency regulation requiring health care workers at facilities participating in Medicare and Medicaid to be vaccinated. This includes an estimated 17 million workers across 76,000 facilities, including nursing homes, hospitals, dialysis facilities, ambulatory surgical settings and home health agencies. The regulation does not allow for covered workers to submit negative tests in lieu of a vaccine.

NCSL will continue reviewing OSHA’s emergency standard, analyzing the impact it will have on states and tracking state actions related to COVID-19 vaccines.

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

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