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WASHINGTON – Workers at larger businesses will have to get vaccinated against COVID-19 by Jan. 4, 2022, or face regular testing under new federal rules being released Thursday.
Workers who choose the testing option may have to bear the cost. They also will be required to wear a face mask on the job beginning Dec. 5.
The rules fill in the details for the vaccination requirement President Joe Biden announced in September for businesses with 100 or more employees.
The Labor Department is taking feedback over the next month on whether smaller workplaces should be included.
"COVID-19 continues to hold back our workforce and our economy – and it will continue to do so until more Americans are vaccinated," Labor Secretary Marty Walsh and Jeff Zients, the White House COVID-19 response coordinator, wrote in an opinion piece for USA TODAY.
The Occupational Safety and Health Administration requirement also applies to state and local government workers in 26 states, including teachers and school staff.
Twenty-one of those states have the option of writing their own workplace rules for public and private sector workers. But those rules can’t be weaker than what the federal government is requiring – and must be adopted in 30 days.
Three states, Arizona, South Carolina and Utah, already have missed the deadline for adopting an emergency rule OSHA issued in June for health care workers.
The latest federal rules, which cover an estimated 84 million employees, are expected to be immediately challenged by Republican-led states, some of which already have moved to ban vaccination requirements.
"This is an overreach of the government’s role in serving and protecting Hoosiers," Indiana Gov. Eric Holcomb said Thursday in announcing the state was preparing a lawsuit against what he called an unprecedented action.
Debate, challenges expected quickly
Republicans have also denounced the workplace requirement as a threat to individual liberty that will result in massive disruptions in the labor market.
“Your plan is disastrous and counterproductive,” the attorneys general of 24 states warned Biden in September.
Major business groups like the U.S. Chamber of Commerce and the Business Roundtable have not come out against a requirement, though they've pressed for more information about how new rules would be implemented.
But some organizations, including the National Retail Federation and the American Trucking Association, had urged that the requirements not take effect until after the busy holiday season to avoid disruptions if workers quit.
The new rules do that. In addition, the previously announced Dec. 8 deadline for federal contractors to get fully vaccinated is being extended until Jan. 4. That's also the vaccination deadline for workers at health care facilities that treat Medicare or Medicaid patients.
The deadlines were aligned to make compliance easier across the labor market, according to a senior administration official who briefed reporters on condition of anonymity.
The rules for federal contractors and health care workers are tougher, however, and do not include a testing option.
But Walsh, the labor secretary, emphasized that the OSHA requirements for other businesses are a "floor for safety – not a ceiling." Many businesses already have imposed full vaccination requirements, Walsh noted in his opinion piece with Zients.
Biden has said he reluctantly agreed to vaccination requirements after educational efforts and various incentives failed to persuade enough Americans to protect themselves and others against COVID-19.
"I’m calling on employers to act," Biden said in a statement Thursday. "Businesses have more power than ever before to accelerate our path out of this pandemic, save lives, and protect our economic recovery."
Requirements have boosted vaccination rates at companies and institutions by at least 20%, according to the administration.
Nearly 90% of adults have received at least one dose of the COVID-19 vaccine, and about 70% of adults are fully vaccinated, according to the Centers for Disease Control and Prevention.
Combined, the rules for larger businesses, federal contractors and health care workers are estimated by Goldman Sachs to cover 80% of the nation’s workforce.
Though some employees will leave a job rather than get vaccinated, the financial firm projected that the reduced spread of the virus from higher vaccination rates will have a larger – and positive – effect on the economy.
About the new OSHA rules
The requirements announced Thursday by the Labor Department use an emergency procedure that sidesteps OSHA's usual lengthy rulemaking process.
To withstand a court challenge, the agency will have to prove the rules are necessary to protect workers from a grave danger.
The administration estimates the requirements will save thousands of lives and prevent more than 250,000 hospitalizations in the six months after implementation.
Sidney Shapiro, a Wake Forest law professor who has worked as an OSHA consultant, told a congressional panel last week that the emergency standard has been met.
“It is true that the situation is improving, but not everywhere, not for certain,” Shapiro testified. “And COVID, unfortunately, is not going to go away.”
Scott Hecker, the workplace safety lawyer whom Republicans invited to testify, said OSHA has to explain why, if COVID-19 is such a grave danger, the agency didn’t include a vaccination requirement when it announced new rules four months ago.
In addition to hitting larger businesses, the vaccination rules apply to state and local government workers in more than half the states.
Five states – Connecticut, Illinois, Maine, New Jersey and New York – have OSHA-approved plans specifically for public employees.
Twenty-one states handle their own workplace enforcement. They are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington and Wyoming.
As a condition of not using OSHA's rules, those states’ workplace rules have to apply to public employees as well as the private sector. In addition, their rules have to be “at least as effective.”
If states don't comply, the Labor Department can take away some of a state's workplace enforcement authority, a senior administration official confirmed.
And the administration stressed that the federal regulations preempt any state or local prohibition against vaccination requirements or mask mandates.
Labor Department officials said they expect the "vast majority" of workplaces to comply, as they do with other rules. And as with other requirements, OSHA will rely both on worker complaints and spot checks for enforcement.
"Employers covered under the new (rules) have their work cut out for them to get in compliance with the new standards, while employees who are given the option for weekly mandatory testing will have to pay for that testing out of their own wallets," said Keith Wilkes, an expert on labor law at Hall Estill, a national law firm.
Employers are not required to pay for weekly testing for unvaccinated workers, because "the agency does not believe it appropriate to impose the costs of testing on an employer where an employee has made an individual choice to pursue a less protective option," OSHA wrote in the official notification.
Even before Biden announced the forthcoming standard in September, a quarter of private employers had vaccine requirements, according to Doron Dorfman, a Syracuse University law professor.
Five percent of unvaccinated adults surveyed in October say they have left a job because of a COVID-19 vaccination requirement, according to the nonpartisan Kaiser Family Foundation.
If faced with a requirement, more unvaccinated workers (46%) said they would most likely choose weekly testing than leave their job (37%) or get vaccinated (11%). If weekly testing is not an option, 17% said they would get vaccinated and 72% said they would quit.
This article originally appeared on USA TODAY: Biden COVID vaccine plan sets deadline for large companies' employees