Where and who the federal vaccination mandate affects

Catie Clark
BridgeTower Media Newswires

The rules for federal vaccination mandates requiring employees to be vaccinated for COVID-19 are summarized in this article, with some of the trickier twists highlighted. The Biden administration released the details from the Occupational Safety and Health Administration (OSHA) emergency temporary standard in Nov. 4.

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Federal mandate coverage

There are three federal mandates covering four groups of workers.

The first mandate covers all employers of 100 or more workers and all firms with federal contracts and is issued by OSHA. Employees at these businesses must either be fully vaccinated or will be subject to weekly testing and mandatory masking by Jan. 4.

Employers must provide paid time off for workers to receive vaccination.

These two classes of private employers are not required by OSHA to pay for or provide tests unless they are otherwise obliged to do so by state or local laws or by a collective-bargaining employment contract. Employs also decided not to give workers the option to mask and be tested weekly and instead require just vaccination to all who do not qualify for exemptions.

Employers must do all their own enforcement on vaccination exemptions. This leaves every affected employer with the task of making up its own rules for exemptions at its own cost.

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Health care and federal employees

Also issued formally on Nov. 4, an additional rule was issued that exclusively affects health care workers. Health care workers who are employed at health care firms receive funding from Medicare, Medicaid or both must be fully vaccinated by Jan. 4. The option to be tested weekly instead is not permitted.

The third mandate covers all workers directly employed by the federal government, who must be fully vaccinated by Nov. 22.

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Timing is important

The language requiring workers be “fully vaccinated” includes the two weeks after the last vaccination shot to give the vaccine time to increase immunity. For example, to be fully vaccinated by Nov. 22, a federal employee must have received the second shot of the Moderna or Pfizer-BioNTech vaccine or the sole shot of the Johnson & Johnson vaccine on Nov. 8.

To be fully vaccinated by Jan. 4, federal contractors, private employees and health care workers must have received the second shot of the Moderna or Pfizer-BioNTech vaccine or the sole shot of the Johnson & Johnson vaccine on Dec. 21. Those needing to meet the Jan. 4 deadline, can not put off getting the Pfizer-BioNTech vaccine past Nov. 30 or the Moderna vaccine past Nov. 23. This is because the minimum interval between the first and second dose is 21 days for Pfizer-BioNTech and 28 days for Moderna.

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Who do the mandates affect?

All full-time and part-time workers count toward the 100 employee threshold and all of them are subject to the vaccination mandate. Independent contractors are exempt from a workplace’s mandate, excluding federal contractors and federal subcontractors.

All part-time and full-time workers must be vaccinated even if they work remotely but come in to use workplace facilities at any point.

Fully-remote workers and outdoor workers are not required to be vaccinated or submit to weekly testing.

Businesses with 100 or more employees who work across several different sites must still be vaccinated.

The private sector, including nonprofits and private colleges and universities, are subject to the vaccination mandate rules. Public colleges and universities are not are covered by the mandates enforced by OSHA.

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Where matters as much as who

The 100 employee cut-off applies only to employees in the United States. If a firm has 100 workers but 50 work in a facility in Canada, it is exempt, for now.

If several businesses all with less than 100 employees apiece share a facility, such that the combined number of workers exceeds 100, employers are not subject to the vaccination mandate. While this might seem farfetched, in reality these arrangement occur in Idaho. For example, the Miles Bus Company of Blackfoot shares one facility between four different bus companies owned by different members of the Miles family.

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What is the authority of the mandate?

For the federal government, the executive order applies only to the executive branch. Congress and its staff members are exempt. Executive orders are not legislation so they require no approval from Congress, and as long as they fall within the executive branch’s powers, legal authority and regulations, Congress cannot overturn executive orders. They can only be overturned in court for being unlawful in some manner.

OSHA issued the rules under the authority it has under the Occupational Health and Safety Act. This act allows the agency to enforce the executive orders using its authority to issue an emergency temporary standard.

The emergency standard regulations allows the agency to issue the rules for the mandates before subjecting them to the usual public testimony and hearing procedure. OSHA must still initiate the public hearing process, which takes place after issuing the emergency rules. The public hearing process can only be delayed, not circumvented or ignored.

A state law cannot overturn the executive order or OSHA ruling. Because of the primacy of federal law, its rules preempt the regulations of state governments, except for those states that have their own OSHA-approved workplace safety agencies. There is an added caveat that state worker safety agencies must have rules at least as effective as OSHA’s. Idaho is not one of the states with its own worker safety agency.