OSHA COVID-19 Vaccine Rule May Be Expanded to Small Businesses: Labor Department

The Biden administration’s emergency COVID-19 vaccination requirement released today could be expanded in the future to employers who have fewer than 100 workers.

The emergency temporary standard, issued by the Labor Department’s Occupational Safety and Health Administration (OSHA) and scheduled to go into effect on Friday, is presented as only applying to firms that have 100 or more employees.

But OSHA is seeking public comments on that aspect of the standard, and it may be ultimately expanded to include smaller businesses, the agency said in the 490-page document.

OSHA said it is “soliciting stakeholder comment and additional information to determine whether to adjust the scope of the ETS,” or emergency standard, “to address smaller employers in the future.”

The agency is seeking perspectives from employers, it indicated (pdf).

“OSHA seeks information about the ability of employers with fewer than 100 employees to implement COVID-19 vaccination and/or testing programs,” it said.

“Have you instituted vaccination mandates (with or without alternatives), or requirements for regular COVID-19 testing or face covering use? What have been the benefits of your approach? What challenges have you had or could you foresee in implementing such programs? Is there anything specific to your industry, or the size of your business, that poses particular obstacles in implementing the requirements in this standard? How much time would it take, what types of costs would you incur, and how much would it cost for you to implement such requirements?”

The standard takes effect on Friday but also serves as a proposal under the Occupational Safety and Health Act. That means OSHA is seeking feedback and may adjust the finalized version based on the comments.

The standard forces many private employers to require proof of COVID-19 vaccination from workers or submit to COVID-19 testing on a regular basis, at least once a week.

Workers who refuse to provide proof must be compelled to wear masks.

The deadline to comply is Jan. 4, 2022.

Administration officials assert OSHA has the authority to promulgate such a rule because the COVID-19 pandemic presents an emergency and the agency is bestowed powers through the OSH Act.

Critics say the regulation is government overreach and outside the authority of OSHA. Dozens of attorneys general have vowed to sue over the standard and Republican members of Congress are gearing up to try to strike it down.

Penalties for noncompliance include a $14,000 fine for a single violation, an administration official told reporters in a call late Wednesday.