What Biden’s OSHA Vaccine Mandate Means for Business

President Biden announced on Thursday, September 9, 2021, new steps designed to fight COVID-19 including a vaccination mandate for up to 80 million American workers. The mandate applies to companies with 100 or more employees and will be imposed by the Occupational Safety and Health Administration (OSHA), part of the Department of Labor (DOL).

Under the mandate, affected workers will have to be vaccinated against COVID-19 or face weekly testing. Workers will receive paid time off to be vaccinated, according to the president. Here’s information about which businesses are affected by the mandate and how their operations will be impacted.

Which Businesses Will be Impacted?

If your business employs fewer than 100 workers, the just-announced OSHA vaccination mandate does not affect you. However, depending on the type of business you own or whom you do business with, you may be impacted by other vaccine mandates. This could include the following businesses or organizations, regardless of size:

• Nursing homes, hospitals, and other facilities that receive Medicare and Medicaid funds.
• Facilities that house Head Start programs.
• Government contractors.

All together, vaccine mandates are expected to impact 100 million workers, roughly two-thirds of the American workforce. In terms of businesses affected by the latest mandate, it’s fewer than 2% of companies. Further, as the president noted, some large employers are already requiring their employees to be vaccinated. Among those mentioned by President Biden in his remarks Thursday were United Airlines, Disney, Tyson Foods, and Fox News.

When Must Employees Be Vaccinated?

The exact timeframe will depend on the speed with which OSHA issues its mandate. According to reporting, the White House said the rule would be issued “in the coming weeks.”

For comparison, OSHA’s June 21, 2021, Emergency Temporary Standard (ETS) mandating that healthcare workers be provided with personal protective equipment (PPE), was the result of an executive order issued by President Biden on January 21, five months before the ETS went into effect.

What About Details?

The mandate is short on details such as providing information about how vaccination records will be gathered and stored. The President’s remarks do not include any indication of which, if any, exemptions will be allowed.

The announcement by President Biden also didn’t provide clarity on whether the mandate would apply only to workers in company offices and facilities or to all employees, including those who work from home.

There’s no indication so far about whether companies will have to pay for testing for those employees who refuse to get vaccinated, or whether companies can pass on the cost of the tests to employees.

What Happens if You Don’t Enforce the Order?

The president didn’t announce penalties for non-compliance but, according to the Washington Post, a senior administration official said companies that ignore the mandate could face fines of up to $14,000 per violation. OSHA will be charged with enforcing any fines that are enacted. 

This comports with information on the OSHA website, which lists penalties for infractions of its rules as follows:

• Serious violations—$13,653 per violation
• Failure to abate—$13,653 per day beyond the abatement date
• Willful or repeated violations—$136,532 per violation

Is the Mandate Legal?

OSHA has the power to issue what’s known as an Emergency Temporary Standard (ETS) until a permanent standard is adopted, when “workers are in grave danger due to exposure to toxic substances or agents.”

The agency, which is responsible for workplace safety, has issued other pandemic-related guidelines including one in June that required employers in the healthcare business to provide protective equipment to workers.

This does not mean there will not be challenges, both political and legal. Some of those who say the mandate is not legal assert that COVID-19 is not a toxic substance or agent, and therefore is not covered by OSHA regulations. Others have cited a 1905 Supreme Court decision in Jacobson v. Massachusetts in which the court decided that a man could be required to be vaccinated during the then-ongoing smallpox epidemic.

What’s Next?

In his remarks Thursday the president asked other businesses to help increase vaccinations. This included large entertainment venues, sports arenas, and movie theaters. “Please require folks to get vaccinated or show a negative test as a condition of entry,” Biden said.

President Biden also announced an expansion of the Economic Injury Disaster Loan program for small businesses from the current $500,000 maximum to a new $2 million maximum. “These low-interest, long-term loans,” the president said, “require no repayment for two years and can be used to hire and retain workers, purchase inventory, or even pay down higher-cost debt racked up since the pandemic began.”

Finally, Biden added, “I’ll also be taking additional steps to help small businesses stay afloat during the pandemic.”