Federal vaccine rule for private businesses to kick in on Jan. 4

By: and - November 4, 2021 3:23 pm

(Getty images)

WASHINGTON — Many private employers beginning in January will have to ensure their workers either are fully vaccinated against COVID-19 or that they will undergo weekly testing and wear a face covering, under a new federal rule announced Thursday by the White House.

The policy from the Occupational Safety and Health Administration is set to affect 84 million workers across the U.S. Employers who refuse to comply could face hefty fines.

Final details of the new rule were released almost two months after President Joe Biden announced the vaccination requirement for all private companies with at least 100 employees.

Other workers also must comply with new vaccination rules.

Another 17 million health care providers at 76,000 facilities participating in the federal Medicare and Medicaid health insurance programs must be vaccinated under a separate policy announced Thursday. Those health care workers will not have the option of weekly tests.

The mandate will have a big impact on some Virginia facilities, including major hospitals and nursing homes. Ballad Health, the primary hospital system in Southwest Virginia, announced Thursday that it was in the process of drafting a staff vaccination policy to comply with the rules.

Southwestern Virginia has struggled to manage disproportionately high numbers of COVID cases and hospitalizations, both last winter and during a delta surge earlier this fall. But Ballad was one of the only health systems not to implement its own staff vaccine mandate, citing fears that it would exacerbate an existing staff shortage.

“We remain concerned this will negatively affect service and our ability to respond to the medical needs of our region, though we have no choice but to comply,” hospital leaders said in a statement. The federal policy applies to all health care centers that accept Medicaid and Medicare, and noncompliant facilities are at risk of citation or fines. More than 70 percent of Ballad’s patients rely on government-provided insurance, according to the system.

Virginia’s long-term care industry has also expressed concerns over the policy. A recent survey by the Virginia Health Care Association and Virginia Center for Assisted Living, a lobbying group that represents hundreds of nursing homes across the state, found that 75 percent of facilities were reporting staff shortages and 37 percent had limited the number of residents they were admitting due to workforce challenges. Across the state, just over 79 percent of nursing home staff have already been vaccinated, according to data from the U.S. Centers for Medicare and Medicaid Services.

Some facilities have already put their own mandates in place and haven’t seen significant numbers of employees choose to leave as a result, said Amy Hewett, VHCA-VACL’s vice president of strategy and communications. But with widespread staffing shortages, there’s worry that even a few resignations could majorly impact the operations at many nursing homes.

“There is some concern, in some facilities, that even if they were to lose a few staff members it could have serious consequences,” Hewett said. Some other industry groups, though, called for mandates months ago, calling them key to resident safety and to preventing non-compliant staff from moving to other facilities without their own vaccination requirements in place.

Federal contractors also must ensure their employees are vaccinated, under another rule announced earlier this week. That requirement had been set to kick in Dec. 8, but Thursday’s announcement by the White House stated that all three of the vaccination requirements will go into effect on Jan. 4.

Senior Biden administration officials who briefed reporters Wednesday evening touted vaccination requirements already in place by private companies and local governments as having slashed the number of unvaccinated Americans by nearly 40%.

The new OSHA rule will save thousands of lives and prevent hospitalizations, they argued.

But the policy has already sparked vocal outcry and legal challenges from Republicans.

Before it will fully go into effect, officials in 21 states that enforce their own workplace safety rules also will need to take action.

Those states — which include Nevada, Arizona, New Mexico, Minnesota, Iowa, Michigan, Tennessee, North Carolina, Virginia, and Maryland — will have 30 days to approve their own policies that are at least as stringent as the new federal policy.

The rule does not require employers to provide or pay for tests for those who are not vaccinated, but they may be required to do so under other laws or agreements with unions.

Potential fines for not complying

Being fully vaccinated against COVID-19 means receiving both doses of the two-shot vaccine from either Pfizer or Moderna, or getting the one-shot version from Johnson & Johnson. (The booster doses recently approved for some Americans are not required to be considered fully vaccinated.)

The new OSHA rule also requires employers to provide paid time off for workers to get vaccinated and recover from any side effects. That policy, and another requiring unvaccinated workers to wear a face mask, will go into effect on Dec. 5.

Refusing to comply could mean fines for the employer.

Federal OSHA officials say the cost would depend on the number and magnitude of any violations, but a single violation could bring a fine of nearly $14,000 — and those deemed to be “willful” could cost as much as $136,000.

Hospitals or long-term care facilities that do not comply with the vaccination requirement for their workers also could face penalties from the Department of Health and Human Services’ Centers for Medicare and Medicaid Services.

Facilities could be fined, denied federal payments or even removed from the Medicare and Medicaid programs. But federal officials emphasized that they will be seeking first to bring any negligent businesses and health care providers into compliance.

Timing the vaccination requirement to kick in after the December holidays is intended to make it easier for businesses and workers to comply, according to the Biden administration.

But administration officials said they hope that employers will not wait until the deadline approaches to begin enforcement.

Republican-led lawsuits

As employers prepare to comply with the new federal workplace rules, legal battles over the vaccination mandate will be playing out in the court system.

Republican attorneys general from 19 states already have filed four separate lawsuits arguing that the vaccination requirement for federal contractors violates federal law.

Iowa, Missouri, Montana, and New Hampshire have signed on to one lawsuit filed in a federal district court in Missouri. Another involves a group of states that includes Georgia, Idaho, and Kansas. Florida officials also have filed their own lawsuit.

Several dozen Republican U.S. senators also have said they will seek to use the Congressional Review Act to overturn the new regulation. But that effort is unlikely to succeed because it would require a resolution to pass both Democratic-controlled chambers and be signed by the president.

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Laura Olson
Laura Olson

Laura covers the nation's capital as a senior reporter for States Newsroom, a network of nonprofit outlets that includes Virginia Mercury. Her areas of coverage include politics and policy, lobbying, elections, and campaign finance.

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Kate Masters
Kate Masters

An award-winning reporter, Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. While at the News-Post, she won first place in feature writing and breaking news from the Maryland-Delaware-DC Press Association, and Best in Show for her coverage of the local opioid epidemic. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md.

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