- The Washington Times - Thursday, November 4, 2021

The Biden administration published an unprecedented rule Thursday that requires workers at large companies and institutions to get fully vaccinated for COVID-19 by Jan. 4 or face weekly testing, reigniting the mandate wars and unnerving business groups, which warned of a worsening labor crunch and excessive red tape dampening the holiday season.

Employees who refuse to get vaccinated must wear masks in the workplace as of Dec. 5 under the regulation from the Occupational Safety and Health Administration. The rule requires employers to interview workers and draft a roster of vaccination status within four weeks.

“The rule is surprising in that it would put a huge obligation on American retailers to assess their workforce from top to bottom for vaccination status and do so within 30 days,” said Ed Egee, vice president of government relations and workforce development at the National Retail Federation. “This is all during the holiday season, this is all during December. The only thing that gets punted to January is those unvaccinated workers have to show a weekly test.”

Employers must provide paid time off for workers to get vaccinated and recover from any side effects. The temporary emergency standard applies to 84 million workers nationwide.

Vaccination mandates are common in the military or as a condition of school attendance, though the sweep of Mr. Biden’s requirements within the private workforce is novel and will be tested in courts across the country.



“This mandate is historic and unprecedented,” said Josh Blackman, a law professor at the University of South Texas.

Lawsuits expected

The rule announced Thursday is poised to spark a pile of lawsuits that examine the limits of OSHA’s authority.

The Daily Wire, a conservative media company, filed a lawsuit saying Mr. Biden exceeded his authority and failed to collect public comment.

“President Biden, the federal government, social media, and the establishment media have conspired to rob Americans of their freedoms in the name of public health,” said Daily Wire co-founder and co-CEO Jeremy Boreing. “They have broken faith with the American people through conflicting messaging, false information, and by suppressing data and perspectives with which they disagree.”

Missouri Attorney General Eric Schmitt has begun exploring legal challenges to the rule as well. He said he will file a lawsuit on Friday. 

“I’ve been in discussions with businesses in Missouri, including a trailer manufacturing company in mid-Missouri, who say that this vaccine mandate will crush their business,” said Mr. Schmitt, running for the U.S. Senate. “We will be on file first thing [Friday] morning to halt this illegal, unconstitutional attempt by the Biden administration and the federal government to impose their will on thousands of Missouri businesses and millions of Missourians.”

Arizona Attorney General Mark Brnovich and Montana Attorney General Austin Knudsen are also planning to challenge the rule this week. 

The Justice Department declined to comment about the pending lawsuits. 

Lawyers working with employees who object to the mandates started to unpack it all Thursday.

“It basically was what we were expecting. It’s good to know what the actual deadline is, though,” Andrea Ennis, an associate at the Tully Rinckey law firm, told The Washington Times.

The rules are likely to cause turbulence within the workplace, including the requirement for unvaccinated people to wear masks. An unvaccinated person who is nudged into telework might not have to worry, but the covering stands out in an office setting where masks aren’t mandated.

“We can see it now even in the federal employment cases,” Ms. Ennis said. “A lot of people almost feel like it’s a scarlet letter.”

Vaccination goals

Mr. Biden said he did not want to resort to heavy-handed rules but too many people have refused to be vaccinated, threatening public health and the economy. Companies with vaccine rules are seeing results, he said.

Only 58% of the U.S. population is fully vaccinated, although 28 million school-age children recently became eligible.

Mr. Biden said he is worried that those rates aren’t sufficient to push COVID-19 into the background. He is trying to fend off another winter spike in cases and wants to put his recovery agenda on a firmer footing, he said.

“Vaccination is the single best pathway out of this pandemic. And while I would have much preferred that requirements not become necessary, too many people remain unvaccinated for us to get out of this pandemic for good. So I instituted requirements, and they are working,” he said.

Nearly 8 in 10 eligible Americans have received at least one shot. That rate would have seemed good enough to reach “herd immunity” earlier this year, but scientists said the delta variant of the coronavirus pushed the threshold to 90%.

The Republican National Committee accused Mr. Biden of shifting blame for the public health crisis as the U.S. surpassed 750,000 deaths from COVID-19. Mr. Biden lamented the 400,000 mark on the eve of his inauguration.

Joe Biden failed to shut down the virus as he promised. He couldn’t do his job, so now he wants you to lose yours. This mandate is yet another attack on front-line workers, first responders, small businesses and the rights of the American people,” RNC Chairwoman Ronna McDaniel said.

Also Thursday, Mr. Biden mandated the vaccination of 17 million health care workers at sites receiving Medicaid and Medicare payments. He moved back the vaccination deadline for federal contractors from December to Jan. 4.

Rules on large private employers are causing the biggest stir. Senior administration officials said employers could face fines of up to $14,000 per violation of the OSHA rule — a temporary emergency standard — though “willful” noncompliance would trigger higher fines.

A fact sheet issued Thursday did not spell out punishments for noncompliant workers, but officials have said employers would likely be ordered to undergo counseling before resorting to termination. OSHA expects the standard to be effective for six months but said it might update the rule if the coronavirus no longer poses a “grave danger.”

Mandate wars

As expected, the publication of the rule sent the mandate wars into overdrive in Washington and the courts.

Senate Republicans formally opposed the rule under the Congressional Review Act on Thursday, setting the stage for a disapproval vote that will force Democrats to go on record in support or opposition of Mr. Biden’s plan. Sen. Mike Braun, an Indiana Republican who is leading the drive, said he will lobby Democrats in the evenly divided Senate to oppose the OSHA rule.

State Republican lawmakers have taken steps to insulate workers from the mandate. Iowa offered unemployment benefits and required exemptions on religious and medical grounds. Senior administration officials said the federal rules “preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.”

OSHA has broad authority to issue rules that ensure safety in the workplace, and judges have generally sided with employers and colleges that say they want to impose vaccine mandates to fight the coronavirus.

Courts upheld mandates at the University of Indiana and a Houston-area hospital this summer, and a federal judge last month rejected a psychiatry professor’s attempt to block a COVID-19 vaccine mandate at the University of California on the grounds that he and others with previous infections have natural immunity.

The Supreme Court declined to halt Maine’s vaccine rules on health care workers, although New York health care workers will ask the justices to support their push for religious exemptions.

The rule also has defenders.

“Some will call it an overreach, but Biden is acting at the height of his presidential powers. He isn’t acting unilaterally but with congressional authorization under the Occupational Safety and Health Act. President Biden is on rock-solid legal ground with his actions,” said Lawrence O. Gostin, a global health law professor at Georgetown University.

Making his case for mandates, Mr. Biden said employers who have adopted vaccination requirements on their own have tended to increase uptake to above 90%.

“There have been no mass firings and worker shortages because of vaccination requirements. Despite what some predicted and falsely assert, vaccination requirements have broad public support,” Mr. Biden said. 

OSHA estimated that the rule will save thousands of lives and prevent more than 250,000 hospitalizations as a result of workplace exposure to the coronavirus over the six-month course of the standard. The agency also predicted that 5 million Americans will return to the workforce.

“People are sitting out of the workforce because of COVID concerns, right? The worst disruption businesses have faced for nearly two years is their employees getting sick with COVID. At the same time, we have tools at our disposal [that] we know work,” White House spokeswoman Karine Jean-Pierre said.

OSHA estimates that the rule will result in the vaccinations of 23 million more people, though the National Retail Federation pointed to a Goldman Sachs analysis that pegged the number closer to 13 million, with 9% of employees walking off the job.

“It’s the demographics of the workforce and geographic area. If you’re hiring younger people in the South or Mountain West, you’re going to have a worker shortage that is exacerbated by this,” Mr. Egee said.

Advocates for long-term care workers said they liked the spirit of Mr. Biden’s rule but worried about its implementation.

“We are concerned that the execution will exacerbate an already dire workforce crisis in long-term care. A hard deadline with no resources for providers or glide path for unvaccinated workers is likely to push too many out the door and ultimately, threaten residents’ access to long-term care,” said Mark Parkinson, president and CEO of the American Health Care Association and National Center for Assisted Living, which represents 14,000 nursing homes and long-term care facilities.

Other groups said they need more time.

“With the holiday season upon us and consumer demand expected to hit record levels, we requested a 90-day implementation timeline which would have allowed employers more time to design and implement the new vaccine and testing requirements after the holidays,” said Michael Hanson, a senior executive vice president at the Retail Industry Leaders Association, which represents retailers, manufacturers and suppliers accounting for $1.5 trillion in annual sales. 

“The current 60-day timeline doesn’t afford retail that opportunity, and it falls short of the 75 days the government originally gave itself to implement a mandate on federal employees — a period they have now lengthened for government contractors while imposing a much stricter standard on the private sector,” he said.

Mr. Biden previously mandated that federal workers and contractors get vaccinated. The administration said it will now apply the Jan. 4 deadline to federal contractors, health care workers and others to streamline the rules and allow more time to comply.

Federal workers still must start the vaccination process by Nov. 22, the White House said.

“Together, these rules will cover about 100 million Americans — two-thirds of all workers in America,” Mr. Biden said.

Officials defined “fully vaccinated” as two doses of the vaccines from Pfizer-BioNTech and Moderna or one dose of the Johnson & Johnson vaccine.

After Jan. 4, “all covered employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider,” the fact sheet said.

Alex Swoyer contributed to this report.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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