After a long wait, the Occupational Safety and Health Administration issued the Emergency Temporary Standard (ETS) enforcing President Biden’s mandate requiring private employers of more than 100 workers to have all of them vaccinated against Covid 19 no later than Jan. 4, 2022.
However, there is an out – employees who are not vaccinated will be permitted to work if they are tested weekly and wear masks. This may have been added in an attempt to stem rising public resistance to vaccine mandates which don’t allow for exemptions or testing alternatives.
The final ETS explicitly allows an employer to adopt a policy where workers can choose not to be vaccinated as long as they agree to submit to regular Covid 19 testing and to wearing a facemask all the time they are working around others.
No fewer than 26 Republican states filed suits to overturn the ETS, asserting that the order was unconstitutional. On Nov. 6, the 5th U.S. Court of Appeals issued a stay temporarily blocking it.
OSHA says the new ETS will cover two-thirds of the national private-sector workforce, estimated to number 80 million people employed in the U.S.
Before the ETS was revealed, controversy erupted over the requirement that most federal contractors and subcontractors have employees vaccinated by Dec. 8 (which has been extended to Jan 4).
On Sept. 24, the Safer Federal Workforce Task Force issued guidance that requires certain federal contractor and subcontractor employees to be fully vaccinated against Covid 19 no later than Dec. 8.
The reality is that the “guidance” was considered a binding order, which created considerable blowback from employees and employers.
Regarding the controversy that strikes at the very core of the mandate, the contractor guidance and ETS offer no recourse to those who don’t wish to be vaccinated because they already had the disease and therefore possess natural immunity.
In regard to some states’ resistance to the federal mandates, a week before the ETS was published, OSHA issued an explicit warning to those with their own state plan safety agencies that federal government will withdraw permission for those agencies to continue applying OSHA safety laws if do not enforce the vaccine mandates.
The federal government only allows states to maintain their state safety agencies to enforce OSHA rules as long as the state standards are at least as strict as the federal safety laws.
OSHA already had issued warning notices to the Arizona, South Carolina and Utah state plans and can be expected to do so in other states as well.
Negative reaction to the various mandates issued before the ETS has been strong, including sickouts and mass demonstrations along with high-visibility resignations in protest by medical, law enforcement and other professionals.
The Biden administration also has announced that states like Texas, which has banned employer mandates, are preempted by the federal order, (although a legal battle over this issue has been promised by the states involved and Texas already has filed suit challenging the federal order.).
At a time when it is difficult for employers to find skilled workers, the mandate has been criticized for reducing the already shrunken ranks of hospital and health care workers and police as well as logistics workers in the midst of a supply chain crisis.
The federal contractor mandate already resulted in thousands of flights canceled by Southwest and American Airlines, and is seen threatening to snarl port operations as it is imposed on drayage truck drivers and other personnel at ports that are already overwhelmed and understaffed.
The ETS offers few exemptions to its vaccine and masking requirements, but one of these is for remote workers who don’t come into contact with fellow employees. However, their employers must maintain records of their vaccination status.
Employees who work exclusively out of doors, such as agricultural and some construction workers, also are exempted from the standard.
Although not yet spelled out, expect that very few exemptions will be allowed for people due to medical conditions. It may turn out to be that it also will be difficult to obtain exemptions for religious reason, but this too has not been spelled out.
If employers choose to rely on the existing federal contractor requirements, they can expect very few exemptions will be allowed for medical reasons.
At present, contractors can only exempt workers who can show they have allergies to the vaccine or vaccine ingredients that result in anaphylaxis.
In addition, just like the federal contractor requirement, the ETS does not recognize that post-Covid antibodies represent protection from contracting the disease considered sufficient to allow exemption from vaccination.