20 questions, answers on the new COVID vaccine rules for workers

WASHINGTON – Which businesses must require workers get vaccinated for COVID-19 or be regularly tested? How long do they have to comply? Who pays for the testing?

Those are some of the questions that can be answered now that the federal government has released details on the vaccination requirement President Joe Biden announced in September for larger businesses.

The rules from the Occupational Safety and Health Administration also apply to state and local government workers, including teachers and school staff, in about half the states.

Here’s what you need to know:

Who is covered?
The new requirements apply to businesses with at least 100 workers, although the Labor Department is taking feedback over the next month on whether smaller workplaces should be included.

The rules also apply to state and local government workers in 26 states, including teachers and school staff

That’s because five states – Connecticut, Illinois, Maine, New Jersey and New York – have OSHA-approved plans specifically for public employees.

Another 21 states include public employees in their workplace enforcement plans that are required to be at least as tough as OSHA’s. Those states are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington and Wyoming.

When do workers have to get vaccinated?
Workers must be fully vaccinated by Jan. 4, or be tested at least weekly for COVID-19. Employees who aren’t vaccinated must also wear a face mask at work beginning on Dec. 5.

Can an employer mandate vaccinations?
Businesses can be tougher than the rules require and can mandate workers get vaccinated, rather than giving them the option of regular testing.

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Who pays for the testing?
That’s up to the employer to decide. The federal government is giving businesses the option of requiring unvaccinated workers to pay for the tests they must take at least once a week.

The justification is that vaccines are safe, free and the most effective way for workers to be protected from COVID-19 transmission at work.

Employers, however, may be required to pay for testing because of other laws or collective bargaining agreements.

What about time off to get vaccinated?
Employers must provide paid time off for their employees to get vaccinated as well as to recover from any side effects that keep them from working.

Do the requirements include boosters?
Workers will not have to get boosters to be considered vaccinated under the requirements. The agency is following the Centers for Disease Control and Prevention’s definition of “fully vaccinated,” which is one shot of the Johnson & Johnson vaccine or two shorts of Moderna’s or Pfizer’s.

Does having had COVID-19 count as being vaccinated?
No. There are no exemptions to vaccination requirements based on “natural immunity” or the presence of antibodies from a previous infection.

What happens to a business that doesn’t comply?
OSHA’s penalties start at up to $13,653 per violation. But the agency can fine a business ten times that amount for actions considered willful or repeated.

How will the rules be enforced?
Labor Department officials said they expect the “vast majority” of workplaces to comply, as they do with other rules. And as with other requirements, OSHA will rely both on worker complaints and spot checks for enforcement.

Who counts as an employee?
Part-time employees are counted toward the 100-worker threshold to determine if a business must follow the rules, but contractors are not. Employees who work offsite, such as at a customer’s home, are counted. Those who work at home are counted but the vaccination requirements would apply only to the employees who work in the office at least part time.

Can workers be fired for not complying?
Yes. An employee’s refusal to comply with an employer’s policy on vaccination is generally not protected under federal law.

What about workers who don’t want to be vaccinated for religious or other reasons?
If an employee asserts that religious beliefs or medical conditions prevent them from getting vaccinated, they may be entitled to a “reasonable accommodation” under civil rights laws. They may still, however, have to be regularly tested, unless a belief or condition qualifies them for another accommodation.

How long will the rules be in effect?
Because OSHA used an emergency procedure to create the rules, it bypassed the usual comment and rulemaking process. That process must now be completed within six months for the rules to become permanent. At any time, however, OSHA could determine that the pandemic has abated enough to lift the requirements.

Will the rules be challenged in court?
Republican governors and attorneys general are expected to immediately sue OSHA to block the rules. Some private employers might as well. The agency will have to prove to the courts that the requirements are necessary to protect workers from grave danger.

What’s the administration’s justification for the rules?
The administration estimates the requirements will save thousands of lives and prevent more than 250,000 hospitalizations during the six months after implementation.

What do critics say?
Republicans have denounced the workplace requirement as federal overreach and a threat to individual liberty that will result in massive disruptions in the labor market.

What will happen in states that have moved to block vaccination requirements?
The federal rules override state rules or local ordinances unless the federal requirements are successfully challenged in court.

When must states adopt new rules?
The 21 states that run their own workplace enforcement programs have 30 days to either adopt the federal regulations or come up with rules that are “at least as effective.”

Three states, Arizona, South Carolina and Utah, have already missed the deadline for adopting an emergency rule OSHA issued in June for health care workers.
What happens if states refuse to implement the rules?
Workers can ask the courts to require the states to follow the law. OSHA also has the authority to take over a state program that is failing to protect workers.

How do OSHA’s rules affect federal contractors and health workers?
Separate from the OSHA rules, the federal government is requiring federal contractors and employees at facilities that treat Medicare and Medicaid patients to be fully vaccinated by Jan. 4. That tougher requirement supersedes the OSHA rules for larger businesses that would otherwise be affected by OSHA’s new standard.