November 4, 2021

OSHA COVID-19 Vaccine Mandate to Hit Large Employers Jan. 4, with Fines for Noncompliance; Challenges to the Rule Are Ahead

The Occupational Safety and Health Administration is giving employers with more than 100 employees a Jan. 4 deadline to comply with President Biden’s COVID-19 vaccine mandate and threatening thousands of dollars in fines for defiant businesses, according to a fact sheet released by the White House Thursday.

The OSHA rule is expected to be immediately challenged in court by Republican states and some business groups.

Separate from OSHA, the Centers for Medicare and Medicaid Services is issuing a rule to require health care workers in facilities participating in Medicare and Medicaid be fully vaccinated. The CMS rule will also go into effect Jan. 4 and will cover more than 17 million workers at approximately 76,000 health care facilities nationwide.

Unlike the OSHA rule, the CMS rule affecting health care workers does not allow for a testing alternative to vaccination. The CMS rule does allow for medical and religious exemptions.

The White House also said Thursday that it would push back its federal contractor COVID-19 vaccine mandate deadline from Dec. 8 to Jan. 4. A coalition of Republican attorneys general has already filed suit against the federal contractor mandate.

Employers with more than 100 employees must ensure that all their workers are either fully vaccinated or subject to weekly testing and mask-wearing. Fully vaccinated means that the employee has received two doses of Moderna or Pfizer-BioNTech’s shots, or one dose of Johnson & Johnson’s shot.

According to senior administration officials, OSHA will assist employers to develop their vaccine and testing standards. Fines for willfully failing to comply with the mandate could reach as much as $14,000 per violation, with the potential for multiple citations per business.

The rule will also “preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing,” the White House said.

The rule is set to impact roughly 84 million employees; 70% of all U.S. adults are fully vaccinated, according to the administration.

But the mandate has faced pushback from companies and some lawmakers who warn that the new rule could serve to further hinder the nation’s struggling supply chain.

“With the holiday season rapidly approaching, consumers are now facing the likelihood of empty shelves in stores and delayed shipping for online purchases,” with Sen. Cynthia Lummis, R-Wyo. wrote in a letter to Biden. “Removing barriers that allow the private sector to operate efficiently is the best path forward to bolster our supply chains.”

The Republican senator said just a few unilateral actions from the president could have “an immediate and measurable impact” on the transportation sector, including allowing 18-year-olds to drive trucks in interstate commerce and ditching the COVID-19 vaccine mandate that could discourage workers from looking for jobs in the field.

Health care facilities participating in the Medicaid and Medicare programs that do not comply with the mandate could face monetary penalties, denied payments, and possibly termination from the Medicaid and Medicare programs – which would be a “last resort,” a senior administration official said.

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