New Private Sector Vaccine Mandates Legal Under OSHA: White House

By Nick Ciolino
Nick Ciolino
Nick Ciolino
Nick Ciolino covers the White House.
September 11, 2021 Updated: September 11, 2021

The White House claims its new vaccine mandate for private-sector workers is legal under the Occupational Safety and Health Act of 1970.

A new rule is expected in the coming weeks from the Occupational Safety and Health Administration (OSHA) to require all workers at private businesses with 100 employees or more to be vaccinated for COVID-19. The rule comes as part of an executive order announced Thursday by President Joe Biden and will affect more than 80 million workers in the private sector.

“The [OSHA] law basically requires the Department of Labor to take action when it finds grave risk to workers,” White House press secretary Jen Psaki said at Friday’s press briefing. “And, certainly, a pandemic that killed more than 600,000 people qualifies as a grave risk to workers.”

Department of Labor Secretary Marty Walsh is set to oversee the creation of an Emergency Temporary Standard (ETS) to implement the new requirement. The rule will require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. It will also require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they suffer from an adverse reaction post-vaccination.

Fines for companies that don’t comply with the law could total as much as $13,600, and Psaki says businesses with employees that opt-out of receiving the vaccine will have to cover the cost of weekly tests.

The ETS will also apply to public sector state and local government workers, including educators and school staff, in the 26 states and two territories with a state OSHA plan.

The OSHA law reads: “Under certain limited conditions, OSHA is authorized to set emergency temporary standards that take effect immediately and are in effect until superseded by a permanent standard. OSHA must determine that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them.”

At least 19 Republican governors and two attorneys general issued statements disagreeing with the administration’s move to mandate vaccines, with several vowing to defy it or announcing plans for legal action against it.

“The COVID-19 vaccines are safe and effective tools to prevent the disease, but getting the vaccine is and should be a choice,” Arizona Gov. Doug Ducey said in a statement. “These mandates are outrageous. They will never stand up in court. We must and will push back.”

The Executive Order includes exemptions for religious and medical reasons. Psaki says OSHA will determine the specifics around those exemptions as part of its process of developing the new standard.

When asked how the mandates will be enforced, White House COVID-19 response coordinator Jeff Zients said, “the president has been clear that he will not hesitate to take strong actions like he did [Thursday] to protect workers and the American people and accelerate our path out of this pandemic.”

The current standard for employees to be considered fully vaccinated is to have received both doses of a two-dose vaccine or one shot of the Johnson & Johnson vaccine.

Nick Ciolino
Nick Ciolino covers the White House.