States Could Push Off Biden’s Vaccine Mandate for Years

26 states write their own workplace safety and health rules, and it could take OSHA a long time to force states to update their rules.

October 20, 2021

COVID-19 Vaccine Next to a Gavel

ALEXANDRIA, Va.—Last month, President Joe Biden announced a sweeping vaccine mandate for federal employees and contractors, plus companies with more than 100 employees as part of a White House action plan to address COVID-19 cases in the United States.

The Occupational Safety and Health Administration (OSHA) has submitted the rule to the Office of Management and Budget for interagency review, the final step before publication. OMB could publish the rule in the coming days or it could take several more weeks before official guidance is released. When the rule is issued, some states could get around the enforcement for months, according to Bloomberg Law.

Twenty-six states, Puerto Rico and the U.S. Virgin Islands can adopt and enforce their own workplace safety and health rules for private-industry or state and local government workers, as allowed by OSHA. Included in the 26 states are Alaska, Arizona, Indiana, Kentucky, South Carolina, Utah and Wyoming, which are states that have said they would sue over the OSHA vaccine mandate if it is enacted.

Although these states and territories can make their workplace rules, the measures must be “at least as effective” as the federal mandate. If states don’t create a mandatory vaccine rule that’s as effective as the federal standard, OSHA can take legal action and can decertify the entire state plan or take over specific parts of the state agency’s missions, such as enforcement.

The issue is that it can take years for OSHA to actually get states to comply with OSHA regulations. The process to force states to comply includes formal notices, a comment period, a hearing before an administrative judge, a review by the secretary of labor, and if the secretary’s decision is challenged, consideration by a federal appeals court.

One way for OSHA to circumvent states from delaying the mandate is to tie state funding of any state plan. OSHA provides up to half of a state plan’s enforcement budget, which has been about $108 million annually in recent years.

According to Bloomberg Law, deadlines for states to adopt federal OSHA rules are often missed with little consequence for the state agencies. An example was when OSHA enacted a COVID-19 emergency temporary standard for health-care employers on June 21, 2021, and all states but South Carolina agreed to implement the standard. South Carolina said it would adopt its own rule, and its state rule is still a work in progress.

Not waiting for OSHA, many big companies have already set a vaccine mandate. IBM said its employees must be vaccinated by Dec. 8 despite how often they come into the office, or they’ll face unpaid suspension. 3M, Disney, Google, Microsoft and Procter & Gamble are some of the major companies who have required the vaccine. American Airlines is requiring all employees to be vaccinated by Nov. 24. Alaska, JetBlue and Southwest also have mandated the vaccine for workers.

Additionally, the oil-field services industry in particular is worried that the coming Biden Administration mandate for U.S. COVID-19 vaccinations or regular testing will prompt highly sought after truckers to quit.