U.S. Vaccine Mandate One Step Closer To Becoming Final, But States Are Pushing Back

As Connecting the Dots reported in September, President Joe Biden asked the Occupational Health and Safety Administration (OSHA) to develop an Emergency Temporary Standard (ETS) that will require all businesses with 100 or more employees to either ensure their workforce is fully vaccinated or to require workers who remain unvaccinated to produce a negative COVID-19 test at least once a week.

As of last week, the ETS is now one step closer to implementation. Specifically, OSHA has sent its draft of the policy to the White House for final review. It is unclear how long that review might take, but employers should be prepared for this new policy to move quickly.

Once the White House review is complete, OSHA will publish the ETS in the Federal Register — at which point U.S. businesses will have to comply with the standard. At this point, the public also will be able to offer comments on the ETS. Under federal law, the ETS can remain in place for only six months. After that, OSHA must replace the ETS with a permanent standard that reflects the comments it received, or it must discontinue the standard.

Connecting the Dots will continue to report on this significant policy as more information becomes available. MSCI members also should stay tuned for announcement of a free, one-hour webinar after the ETS is released.

Actions taken by governors could complicate the federal standard, however. Texas’ governor and Florida’s have both issued orders that bar companies from seeking to apply vaccination requirements in their workplace. Other states are likely to follow, which, as Reuters explains, puts employers in a difficult position. So far, businesses seem inclined to ignore the state orders. Indeed, major airlines based in Texas already have done just that, but the disagreements raise the likelihood that these mandates, both state and federal, will be challenged in the courts. Read more about Texas’ order here.

As a reminder, the Biden administration already has issued a vaccine mandate for companies that are federal contractors or subcontractors. More about those rules here.