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Firms have till after Christmas to stick to the rules

US President Joe Biden will give an update on the Covid-19 Response and Vaccination program on October 14, 2021 in the Roosevelt Room of the White House in Washington, DC.

Nicholas Comb | AFP | Getty Images

The Biden administration on Thursday directed U.S. companies to ensure their employees are fully vaccinated or regularly tested for Covid-19 by Jan. 4 – giving them respite over the holidays before the long-awaited and hotly contested mandate comes into force.

By that date, workers must receive their second vaccination using the two-dose vaccines from Pfizer or Moderna, or a single dose from Johnson & Johnson, depending on requirements.

The administration also postponed Thursday’s deadline for federal contractors to meet stricter vaccine requirements for staff from December 8 to January 4 to meet the deadline for other private businesses and healthcare providers.

The newly published rules, issued by the Occupational Safety and Health Agency under the Ministry of Labor, apply to companies with 100 or more employees. All unvaccinated workers are required to wear masks indoors from December 5th and have a weekly negative Covid test after the January deadline as per requirements.

Companies are not required to pay for or provide the tests unless required to do so by state or local law or in union contracts. Those who test positive are not allowed to work. Employers are also not required to pay for face covering.

The rules do not apply to people who go to work where other people are absent, who work from home, or who work exclusively outdoors. Workers with sincere religious beliefs, disabilities, and those with medical problems who do not allow vaccination may receive exemptions.

Companies also have until December 5 to offer their employees paid time for vaccinations and paid sick leave so that they can recover from side effects.

OSHA, which oversees occupational safety for the Department of Labor, will, among other things, provide sample implementation plans and fact sheets to help companies implement the new regulations.

OSHA will also conduct on-site workplace inspections to ensure companies are complying with the rules, a senior administrative official said. Penalties for non-compliance can range from $ 13,653 per serious violation to $ 136,532 for a company intentionally breaking the rules.

The vaccination mandate, which includes 84 million people employed in the private sector, represents the most extensive use of federal powers to protect workers from Covid-19 since the virus was declared a pandemic in March 2020.

The Centers for Medicare and Medicaid Services, the federal government’s health insurers for the elderly and poor, also require the 76,000 healthcare facilities participating in the programs to ensure that their employees are fully vaccinated by Jan. 4, affecting approximately 17 million are employees, said senior administrators. Facilities that violate the mandate could run the risk of losing funding, they said.

Business community shared

The Ministry of Labor has developed the business mandate under the Emergency Authority, which shortens the process of issuing new occupational safety standards, which usually takes years. OSHA can use its emergency powers if the Secretary of Labor determines that a new hazard, in this case Covid, puts workers at serious risk.

Corporate groups had urged the government to postpone the mandate until after the busy holiday season, fearing workers would rather quit than stick to the rules, which further upsets already tight supply chains and a tight labor market.

The US Chamber of Commerce, which requested a postponement until after the holidays, praised OSHA Thursday for “making significant adjustments” that “reflect business concerns.” The Business Roundtable supported the government’s vaccination policy.

However, the National Retail Federation said the requirements are placing burdensome new requirements on retailers during the crucial Christmas shopping season. The NRF, which requested a 90-day implementation deadline, said the mandate could disrupt the economy and “exacerbate pre-existing labor shortages.”

The Retail Industry Leaders Association called the implementation deadline “insufficient” and said the potential fines for non-compliance were “unnecessary and not helpful”.

“While the mandate for private employers technically begins after the holiday, the planning time for the design and implementation of the mandate falls during the busiest time of the shopping season,” the association announced on Thursday.

The National Association of Manufacturers is concerned about possible “unreasonable cost burdens,” and the National Federation of Independent Business said it is against the rule.

Legal challenges likely

Almost every Republican attorney general in the US vowed in a September letter to the White House to take legal action to end the mandate, calling it “counterproductive and harmful”.

Republicans and industry lobbyists have argued that the current threat from Covid does not pose a serious threat as claimed by the Biden administration. They point to the increasing levels of vaccination and natural immunity in the US against previous infections, as well as the containment measures already in place by many companies in the workplace.

Covid has killed more than 745,000 people and infected more than 46 million, according to the Centers for Disease Control and Prevention in the United States. The virus infects an average of more than 72,000 every day.

“A virus that has killed more than 745,000 Americans with more than 70,000 new cases a day is clearly a health hazard that is a serious threat to workers,” said Seema Nanda, a lawyer for the Labor Department, during a press conference Thursday .

Nanda said the mandate pre-empts state-level regulations on vaccinations, Covid-19 tests, and face masks unless those rules are part of a state-approved OSHA plan. States like Texas have tried to ban vaccination mandates.

The AFL-CIO, which represents the largest trade union group in the US, had urged that even more comprehensive protective measures be included in the mandate, such as: OSHA does not currently require these additional mitigation measures for private companies.

“OSHA has determined that it needs more information before imposing these requirements on the full range of industries and employers covered by the standard,” the agency said in the emergency safety standard, which details the requirements.

In a statement on Thursday, the AFL-CIO called for the implementation of more comprehensive Covid safety measures in the workplace. The trade union federation also criticized the Biden government for not forcing employers to pay the testing costs.

“The important thing is that the cost of job security is the responsibility of the employer and should never fall on the employee,” said the AFL-CIO. “As this rule is implemented, we continue to urge the administration to ensure that employers are committed and fulfilling their responsibilities to ensure workers are protected from exposure to COVID-19 in the workplace.”

The Biden government could now face legal challenges on two fronts, those who want to remove the mandate and those who want to expand it.

It is unclear whether the mandates will survive legal challenges. OSHA emergency safety standards have a mixed track record in court. Before the pandemic, the agency had not issued an emergency standard since 1983. Courts have postponed or completely repealed four of the 10 emergency safety standards issued by OSHA in its 50-year history. A fifth was partially evacuated.

A respite for federal entrepreneurs

Along with the new rules for companies with 100 or more employees, the Biden government announced that it would extend the deadline for similar but stricter rules for federal entrepreneurs to January 4th.

The federal treaty rules do not provide for a regular Covid test option for employees.

Workers at these companies, which include Boeing, American Airlines, IBM, and smaller contractors such as hospitality companies, must ensure that workers are vaccinated or given exemptions for religious or medical reasons.

These rules met with resistance from some workers and some unions.

For example, the Southwest Airlines pilots union tried to block implementation of the mandate, arguing that it needed to be negotiated with the union. However, a federal judge in Texas denied that motion and dismissed the union’s lawsuit last week.

The union that represents American Airlines pilots wrote to Biden government officials in September seeking alternative to mandate, such as regular testing and warnings that the 60-day deadline could create labor shortages and disrupt vacation travel. The unions of both the American and Southwestern pilots hailed the extension of the deadline for federal entrepreneurs. These airlines have government contracts to fly service members, federal employees, and U.S. mail.

American and Southwest executives toned down their voices on vaccine rules last month after telling workers they needed to be vaccinated or given an exemption to continue working there, and asking employees to request exemptions. Both airlines, as well as JetBlue and Alaska, said they would prescribe vaccines to comply with the order.

American and Southwest have told employees that they must have their second shot of a two-dose vaccine by November 24, the day before Thanksgiving and one of the busiest travel days of the year. Executives said they don’t expect the mandate to affect vacation travel.

The White House on Monday issued guidelines for state contractors that give these employers a lot of leeway in following the rules. However, Biden administration officials have said that contractors don’t have tough deadlines, but they must show they are making a good faith effort to get staff vaccinated and have plans for masking and social distancing in the workplace.

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