In what is anticipated to impact two-thirds of the private U.S. workforce, the Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard (ETS) that requires businesses with more than 100 employees “to develop, implement, and enforce a mandatory COVID-19 vaccination policy.”
Employers may also “instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.”
Tests must be done weekly or within seven days prior to returning to work, with employers not mandated to pay for testing.
These rules go into effect as soon as the ETS is entered into the Federal Register. By Jan. 4, employers must ensure employees are vaccinated or receive a weekly negative test.
According to OSHA, exempt employees include:
- those who don’t report to workplaces where others are present
- those who work from home
- those who work exclusively outdoors
Employers must also keep records for each employee, including vaccination status of each employee and acceptable proof of vaccination. They are responsible for providing paid time off (up to four hours) and subsequent sick days after the vaccination, as the shot may cause common side effects such as fatigue, headaches, muscle pain, chills, fever, and nausea.
According to the Centers for Disease Control and Prevention, the Vaccine Adverse Event Reporting System (VAERS) received 9,367 reports of death (0.0022%) among people who received a COVID-19 vaccine. A report of death to the VAERS system does not confirm the vaccine caused the death. The onset of anaphylaxis, thrombosis with thrombocytopenia syndrome, Guillain-Barré Syndrome, and myocarditis and pericarditis have been reported as rare but severe side effects.
The intended result is to compel 23 million unvaccinated Americans to receive the COVID-19 vaccination, and is the federal government’s method of enacting President Joe Biden’s strategy announced this past September to quell the reemergence of the pandemic. In December 2020, Biden stated that he would not institute vaccine and mask mandates.
While OSHA said the ETS preempts state and local laws “that ban or limit an employer from requiring vaccination, face covering, or testing,” Republicans are already gearing up to fight the rule. Texas Attorney General Ken Paxton announced plans to sue the Biden administration.
U.S. Rep. Thomas Massie of Kentucky also noted that the mandates would create “a supply chain disaster,” citing unsourced data that more than a third of truckers would quit or retire rather than get the vaccine.
According to Chris Spear, president and CEO of the American Trucking Associations (ATA), speaking at the group's Management Conference & Exhibition (MCE), the vaccine mandate is “weaponizing public health."
“Through this pandemic, trucking has kept America safe and remains committed to consumers and the nation, delivering food, PPE, and vaccines,” Spear said. “Elected officials would be wise to take that into consideration, especially with a shortage of talent—not just in trucking, but every sector of the nation’s economy, where labor participation is at an alarming 61%. With this intent, the administration’s COVID vaccine mandate is to protect all Americans—why pick winners and losers? In other words, stop weaponizing public health by dividing our workforce. Ours is a real-world industry that is safely bringing America out of this COVID-induced world.”
After the OSHA announcement, Spear released a comment stating: "...the rule does exempt employees who work 100% alone or outdoors, so long as their indoor contact with other employees or customers is minimal (e.g., using a restroom or briefly visiting an administrative office). In our view, that exemption covers much of the commercial driver population, but as with any complex new rule, it is impossible to be certain how OSHA will apply it until they issue guidance or begin enforcement. We will seek clarification whether commercial drivers are generally exempt under this provision. We remain prepared to seek judicial review of the rule."
The ATA, along with 95 other organizations, also released an open letter to Biden regarding ways to alleviate current supply chain issues. Pertaining to the vaccine mandates, the group called for flexibility:
""Our industries are committed partners in the fight against COVID-19, and we unequivocally support the use of vaccines to fight its spread. However, we are concerned a mandate will cripple an already strained supply chain. We estimate companies covered by the mandate could lose 37% of drivers at a time when the nation is already short 80,000 truck drivers. We ask for flexibility for transportation and supply chain essential workers, particularly truck drivers who spend most of their time in their trucks and have minimal contact with colleagues and customers.
Government justification for the vaccine mandate
Since January 2020, the government claims 745,000 people in the U.S. have died due to COVID-19. OSHA “conservatively estimates” that these efforts “will prevent over 6,500 deaths and over 250,000 hospitalizations.” Since 2020, Obesity and Vitamin D deficiency have been linked to increases in severe outcomes in those who contract COVID-19, though OSHA did not institute any rules mandating sun exposure (which allows the body to make Vitamin D), vitamin D supplements, or increased physical exercise.
The target of businesses with 100+ employees was set because of OSHA’s confidence they have the “administrative capacity to implement the standard’s requirements promptly.” The regulatory body is less confident a company with 99 or fewer employees can enact the new standards “without undue disruption.” OSHA will continue to assess if and when small businesses must also enact these standards.
