Attorneys general in 24 states have threatened to sue. Legal experts generally say that OSHA has the authority to introduce a vaccine mandate under powers granted by the Occupational Safety and Health Act of 1970. But it is never has before required vaccines in the workplace.
Plans for a mandate could also be complicated by state legislation challenging the move. Montana has outlawed employer vaccine mandates. OSHA’s standards pre-empt state governments’ existing rules, except in states that have their own OSHA-approved workplace agencies. (About half do.) The legal basis for a challenge is likely to be weakest in states that are directly within OSHA’s jurisdiction, which include Montana, Texas and Florida.
Even after OSHA finalizes its rules, some employers wary of mandates may not act, betting that they won’t be punished because of the agency’s limited enforcement resources, or decide to wait out any legal battles before putting in place any requirements of their own.
As executives await more details, a cottage industry has emerged to help companies with everything from testing to tracking vaccinations. Smaller employers, in particular, are worried about managing the new requirements, given their limited resources.
ReturnSafe, a software company that can integrate building access systems with vaccine records, said it had gone from an average of 40 to 60 people booking a meeting via its website every week to almost 300 requests per week after Mr. Biden’s announcement. ADP, a payroll processing company, has updated its “return to workplace” software to add features to track vaccination status and weekly Covid-19 testing. Labor lawyers are walking companies through the complex task of handling requests for religious exemptions to vaccine mandates.
The White House released details on its mandate for federal contractors this month, which gives those workers until Dec. 8 to comply. The guidelines are stricter than the proposed rules for private employers: For example, there is no option for the unvaccinated to submit to regular testing instead of getting inoculated. A White House official said the administration expected many companies ultimately to announce vaccine-only policies. IBM and United Airlines noted that their mandates brought them into compliance with the rule for federal contractors.
United, which announced its mandate in August, recently reported that 99 percent of its workers had been vaccinated and that it had received 20,000 applications for about 2,000 flight attendant positions, a much higher ratio than before the pandemic. Tyson Foods reported a 91 percent vaccination rate ahead of a November deadline, compared with less than 50 percent before its mandate announcement in August. These figures challenge the concerns among some employers that mandates would cause workers to quit, particularly in industries facing labor shortages.
Still, “some companies are looking at it and saying: ‘Great that those employers had a good experience. I don’t know if we’ll have the same experience,’” Douglas Brayley, an employment lawyer at Ropes and Gray, told The New York Times’s DealBook newsletter. “Or, they may look at it and say, ‘Great, they had a 91 percent vaccination rate, but we are so thinly staffed we couldn’t possibly lose 9 percent of our work force.’”
Noam Scheiber contributed reporting.
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