Biden administration implements vaccine mandate through emergency rulemaking

The Occupational Safety and Health Administration (OSHA) on Nov. 4 issued an emergency rule effective immediately to implement President Joe Biden’s (D) proposed vaccine mandate on certain private business employees. The rule requires the roughly 80 million individuals who work for companies with 100 or more employees to receive a COVID-19 (coronavirus) vaccine or undergo weekly testing. The rule does not require employers to pay for or provide testing.

Biden on Sept. 9 announced that OSHA would develop a rule to implement the administration’s proposed vaccine mandate. OSHA issued the rule through an emergency temporary standard (ETS)—a type of interim final rule that allows OSHA to set emergency workplace standards without first following the public notice-and-comment requirements of the federal rulemaking process. Though effective immediately, OSHA must follow rulemaking procedures within six months if the agency decides to adopt the ETS as a permanent standard, according to the agency. Affected parties may challenge the validity of an ETS through the U.S. Courts of Appeals.

The Centers for Medicare and Medicaid Services (CMS) also issued a rule requiring that healthcare workers in facilities that participate in Medicare and Medicaid programs obtain a COVID-19 vaccine. The CMS rule does not include a testing option. The Biden administration aligned the vaccination compliance deadlines for private business employees, healthcare workers, and federal contractors to Jan. 4, according to reporting from CNN.

“Together the OSHA and CMS rules, along with the other policies the administration has previously implemented means that over two thirds of all workers in the United States are now covered by vaccination policies,” a senior Biden administration official told CNN. “Higher vaccination rates protect our workers, reduce hospitalizations and deaths. It’s good for workers and importantly, this is good for the economy.” 

Private businesses that violate the OSHA rule could face monetary penalties up to $14,000 per violation. Healthcare facilities that fail to comply with the CMS rule could face monetary penalties, payment denials, or removal from participation in the Medicare or Medicaid programs.

Lawmakers have mounted challenges to the Biden administration’s vaccine mandate on private businesses at both the federal and state levels. U.S. Senator Mike Braun (R-Ind.) and a coalition of Republican senators on Nov. 3 announced their intent to introduce a resolution of disapproval under the Congressional Review Act in an effort to nullify the mandate. At the state level, Arizona Attorney General Mark Brnovich (R) on Sept. 14 filed a lawsuit in the United States District Court for the District of Arizona arguing that the proposed vaccine mandate on private businesses violates the Equal Protection Clause of the U.S. Constitution, might further strain the labor market, and does not properly fall within OSHA’s jurisdiction. Two days later, 24 Republican secretaries of state sent a letter to Biden stating their intent to, in their words, “seek every available legal option” to challenge the ETS.  

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