Temporarily Blocked – OSHA Releases Vaccine Mandate for Private Employers

A federal appeals panel on Saturday temporarily blocked OSHA\’s coronavirus vaccine mandate for businesses with over 100 employees. A group of businesses, religious groups, advocacy organizations and several states had filed a petition on Friday with the court, arguing that the administration had overstepped its authority.

The order directed the Biden administration to respond by 5 p.m. Monday to the group’s request for a permanent injunction. After both sides have filed briefs, the court will decide whether to lift the temporary injunction, allowing the rule to proceed as planned, or whether to grant a permanent injunction. OSHA could then take the case to the Supreme Court.

What’s the Federal Vaccine Mandate?

On September 9, in a televised address to the nation, the President outlined several sweeping actions from his administration to better control the pandemic. They included new executive orders and federal regulations to mandate COVID vaccination for large private employers, most federal agencies and government contractors, and all healthcare providers who receive Medicare and Medicaid reimbursement, ultimately affecting over about two-thirds of the workforce.

The speech included many other COVID regulations and responses as well, such as calling on large entertainment venues, like concert halls and sports arenas, to require proof of vaccination or a negative test to attend their events. 

Biden’s Executive Order requiring vaccination for all federal workers and millions of federal contractors went into effect immediately, but private employers have been waiting for almost two months for further clarification from OSHA.

What is Required by the Federal Vaccine Mandate?

OSHA’s ETS requires private employers with 100 or more employees to implement and enforce a policy mandating COVID vaccination or weekly testing and masking for workers who remain unvaccinated.

When Does the Federal Vaccine Mandate Go Into Effect?

Although the rule goes into effect November 5, employers have 30 days after publication in the Federal Register to comply with most provisions and 60 days to comply with the testing provision. In other words, employers must develop and implement their policies by December 5. Starting on that date, unvaccinated workers must wear masks, and starting on January 4, 2022, they must provide employers with proof of a negative COVID test weekly.

Who Should Employers Count for the Federal Vaccine Mandate?

The ETS clarifies that the 100-employee threshold will include counting workers—regardless of vaccination status—in all locations in which a business operates. Part-time employees will also count, but independent contractors will not. Additionally, remote workers and employees who primarily perform their duties outdoors will count toward the threshold but do not have to comply with the mandate. Under these guidelines, the vaccine mandate is expected to cover about 80 million employees but only 2.5% of private employers.

What Else is Required by the Federal Vaccine Mandate?

OSHA’s rule also requires employers provide at least 4 hours of paid time off for employees to receive and recover from the COVID vaccine. However, employers are not required to pay for testing or masks for unvaccinated workers.