Biden Administration Inches Towards Mandatory Vaccination Edict for US Workers With OSHA Employer Oversight

By Neil Campbell | November 4, 2021
Neil lives in Canada and writes about society and politics.
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The U.S. moves one step towards mandatory vaccination for all citizens who wish to remain gainfully employed
A mother and her child hold signs as they join others to protest vaccine mandates for city workers at City Hall Park on November 3, 2021 in New York City. The Biden administration took another step forward in mandating vaccination for all U.S. workers by edict with the release of OSHA rules set to come into force by Jan. 4, 2022. (Image: Michael M. Santiago/Getty Images)

The Biden administration has taken the next step through establishing central government oversight, mandating the acceptance of the novel Coronavirus Disease 2019 (COVID-19) vaccines as an effectively a mandatory requirement to maintain employment in the United States.

The administration previously announced in September that it would use the Operational Safety and Health Administration (OSHA) to force companies that employ staff greater than 100 people to enforce mandatory vaccination. However, the decree has had only political and media effect because OSHA had yet to deploy officially binding regulations.

Since, OSHA has further foreshadowed expanding the directive to small businesses who employ less than 100 people.

Nonetheless, on Nov. 4, the agency released the anticipated Emergency Temporary Standard (ETS), which is set to come into force immediately after publishing by the Federal Register on Nov. 5.

In the extensive 490-page document, OSHA claims the mandate “is necessary to protect unvaccinated workers from the risk of contracting COVID-19” by protecting workers “through the most effective and efficient workplace control available: vaccination.”

Much of the document relies on handpicked scientific data supporting the establishment narrative today’s all-new gene therapy vaccines sold by Moderna, Pfizer, Johnson & Johnson, and AstraZeneca are effective, safe, and that the unvaccinated are at severe risk from COVID-19.

“Once fully vaccinated, a worker enjoys automatic and long-lasting benefits; namely, a drastic reduction in the risk of severe health effects or death,” reads the document.

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Facing an imminent deadline set for Jan. 4, all employers will be required to establish a “mandatory vaccination policy” and collect a database of documentation from all employees evidencing their personal fully vaccinated status or lack thereof.

Employers will, however, be allowed to opt-out of mandatory vaccination so long as they mandate and enforce weekly testing and compulsory masking of unvaccinated staff.

Notably, while all costs of weekly testing incurred by staff will not be required to be covered by an employer, neither does the ETS prohibit an employer from covering the costs if they either wish to or need to in order to stay competitive in their labor market.

OSHA says that a testing regimen targeting only the unvaccinated “is essential because SARS-CoV-2 infection is often attributable to asymptomatic or presymptomatic transmission.”

The agency also added that it “is gathering additional information” about whether it “should require testing more often than on a weekly basis.”

It further claims justifying segregating unvaccinated employees via a masking requirement, the agency says the visual cue “reflects OSHA’s recognition that regularly testing unvaccinated workers for COVID-19 will not be 100% effective in identifying infected workers before they enter the workplace.”

“Most obviously, testing employees once a week will not prevent an unvaccinated worker from exposing others at the workplace if the worker becomes infected and reports to the workplace in between their weekly tests.”

Unvaccinated staff are required to don a mask at all times when in doors or in a company vehicle with another employee, except for when eating, drinking, or identifying themselves to security.

The mandate has limited exemptions, excluding workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, which is a separate set of rules applying to federal contractors issued by the Office of Management of Budget that has required mandatory vaccination since September.

It also excludes health care workers employed in facilities that take funding from Medicaid or Medicare because a secondary mandate, published the same day and also slated to be published in the Federal Register and become effective on Nov. 5, was issued by the Centers for Medicaid Services (CMS).

Workers who never attend at their workplace or visit customers as a part of their duties, those who work from home, and those who work in settings that are exclusively outdoors are also exempted from the administration’s formal vaccination mandate.

The document also requires the mandatory vaccination policy exclude workers with medical contraindications, medically required delays in vaccination, and civil rights, disability, and religious exemptions. 

OSHA makes clear it takes the position that it is fair that weekly testing costs are not covered by the federal government because staff who don’t want to comply simply have the “choice” to not work, “In addition, these costs are not mandatory because any employee who does not wish to pay them may choose to become vaccinated or leave employment…after which the costs would not be incurred.”

The agency says it is not concerned about the impact of a labor shortage because it believes there is a long list of vaccine-mandate-compliant people ready, able, and willing to take their place, “On the other hand, there is countervailing evidence to suggest that employers who implement a vaccine mandate will be met with an influx of potential workers.” 

OSHA claims, “Many employees would prefer a mandate in place, and would be more likely to stay with, or apply to, a firm that had a vaccine mandate in place.”

Once an employee tests positive for SARS-CoV-2 or COVID-19, they are required to be removed from the workplace and are prohibited from being tested again by the employer for 90 days.

Partially vaccinated individuals are also required to submit to different lengths of testing requirements, depending on which variant of vaccination they have accepted. Pfizer recipients need six weeks of testing, Moderna recipients need six weeks, while J&J takers only need two weeks. 

OSHA estimates the cost of the vaccine mandate, including data collection and logging, will cost the economy almost $2 billion.

No natural immunity

Notably, the mandate does not recognize natural exposure or natural immunity as an alternative to vaccination, stating those who have been exposed but not accepted vaccination “still face a grave danger from workplace exposure to SARS-CoV-2.”

“Given scientific uncertainty and limitations in testing for infection and immunity, OSHA is concerned that it would be infeasible for employers to operationalize a standard that would permit or require an exception from vaccination or testing and face covering based on prior infection with COVID-19.”

It continues, “While the agency acknowledges that the science is evolving, OSHA finds that there is insufficient evidence to allow the agency to consider infection-acquired immunity to allay the grave danger of exposure to, and reinfection from, SARS-CoV-2.”

Frontline healthcare workers

In the CMS’s 214-page mandatory vaccination Interim Final Rule with Comment Period (IFC) deployed to America’s 17 million healthcare workers, vaccine hesitancy among the group is markedly lamented by the agency, “Unfortunately, health care staff vaccination rates remain too low in too many health care facilities and regions. For example, national COVID-19 vaccination rates for LTC facility, hospital, and ESRD facility staff are 67 percent, 64 percent, and 60 percent, respectively.” 

“Moreover, these averages obscure sizable regional differences. LTC facility staff vaccination rates range from lows of 56 percent to highs of over 90 percent, depending upon the State.”

The CMS likewise denies the benefits of natural immunity, stating that evidence from previously infected frontline workers “indicates their infection-induced immunity, also called ‘natural immunity,’ is not equivalent to receiving the COVID-19 vaccine.” 

“Available evidence indicates that COVID-19 vaccines offer better protection than infection-induced immunity alone and that vaccines, even after prior infection, help prevent reinfections.”

The IFC goes as far as to frame mandatory vaccination as an ethical responsibility held by medical professionals, “ All health care workers have a general ethical duty to protect those they encounter in their professional capacity. Patient safety is a central tenet of the ethical codes and practice standards published by health care professional associations, licensure and certification bodies, and specialized industry groups.” 

“Health care workers also have a special ethical and professional responsibility to protect and prioritize the health and well-being of those they are caring for, as well as not exposing them to threats that can be avoided.”

The CMS notes it is aware of “concerns about health care workers choosing to leave their jobs rather than be vaccinated,” but is not worried because “ there is insufficient evidence to quantify and compare adverse impacts on patient and resident care associated with temporary staffing losses due to mandates and absences due to quarantine for known COVID-19 exposures and illness.”

Similarly to the OSHA rule, those who work 100 percent remotely are excluded from the mandate.

However, for workers who “infrequently provide ad hoc non-health care services,” such as technical workers who visit facilities to repair items such as elevators or HVAC units, and those who conduct clerical work at an off-site location, health employers “may choose to extend COVID-19 vaccination requirements to them if feasible.”

“We believe it would be overly burdensome to mandate that each provider and supplier ensure COVID-19 vaccination for all individuals who enter the facility. However, while facilities are not required to ensure vaccination of every individual, they may choose to extend COVID-19 vaccination requirements beyond those persons that we consider to be staff as defined in this rulemaking.” 

“We do not intend to prohibit such extensions and encourage facilities to require COVID-19 vaccination for these individuals as reasonably feasible.”

It is noted that frontline workers with “Certain allergies, recognized medical conditions, or religious beliefs, observances, or practices” must be given the opportunity to “request an exemption from COVID-19 vaccination requirements based on an applicable Federal law.”

The CMS order also asserts that it supersedes “the applicability of any State or local law providing for exemptions to the extent such law provides broader exemptions than provided for by Federal law and are inconsistent with this IFC.”

Small businesses on notice

OSHA is also seeking comment from companies who employ less than 100 people, according to a Fact Sheet for the new ETS, which states, “OSHA has initiated a 30-day public comment period and is inviting comments on any aspect of the ETS and how to proceed with the rulemaking. The public comments will allow OSHA to gather information, diverse perspectives and technical expertise to help the agency in considering next steps.”

In a section about what topics OSHA is seeking to hear comment on, the first item directly targets small businesses, “OSHA seeks information about the ability of employers with fewer than 100 employees to implement COVID19 vaccination and/or testing programs.”

It asks whether companies have already, of their own initiative:

  • Instituted vaccine mandates, with or without alternatives
  • Testing and masking requirements
  • Results from the above approaches
  • Challenges discovered or foresaw in the self-installment of mandates
  • Estimated time, type of costs, and amount of costs to self- install mandates