Update on Upcoming Vaccine Mandate Final Rule

U.S. businesses are currently awaiting a final rule from the Office of Management and Budget (OMB) regarding the Biden Administration’s mandate for companies with more than 100 employees to require employee vaccinations or implement regular testing.
While still not firm, the final rule may be released as early as this week, or it could be in the next two weeks. After meeting with dozens of groups, including RILA, over the last week seeking to provide input on the rule, the OMB is expected to hold its last scheduled meeting at 1:00pm on Thursday. They have scheduled 60 meetings in total.
The former top leaders at OSHA during the Obama administration have stated, in their estimate, it will be a couple of weeks, and the current Deputy Secretary of Labor over the weekend said a few weeks. Regardless, RILA will be prepared to respond if it happens on Friday or in a couple of weeks.

State Actions

We have seen Texas Governor Abbott issue an executive order to stymie federal efforts on vaccine mandates; a couple dozen state AGs have prepared legal challenges; and South Caroline OSHA and the Governor have threatened to not only refuse to adopt the rule but issue its own ETS.
The administration has started to communicate to the states and elected officials on these actions.
For example, the Safer Federal Workforce taskforce issued this FAQ:
Q: Does [the new contract clause for a hard vaccine mandate] apply in States or localities that seek to prohibit compliance with any of the workplace safety protocols set forth in the Task Force Guidance for Federal Contractors and Subcontractors?
A: Yes. These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance. Additionally, nothing in the Task Force Guidance shall excuse noncompliance with any applicable State law or municipal ordinance establishing more protective workplace safety protocols than those established under the Task Force Guidance.
The US Department of Labor sent letters today to South Carolina, Arizona, and Utah informing the states that federal OSHA was considering revoking their approved status to operate their State OSH Plans (i.e., to rescind their jurisdiction to regulate and enforce workplace safety in their states) because they have not yet adopted the prior COVID-19 ETS for healthcare that federal OSHA issued in June. 
The OSH Act requires that whenever federal OSHA adopts an emergency standard, the State Plans are required to promptly adopt their own ETSs that are at least as effective as the federal rule.  Of the twenty-two states that run their own State OSH Plans that cover the private-sector, only South Carolina, Arizona, and Utah have not yet adopted any portion of the healthcare ETS. 
For more information on RILA’s efforts related to the forthcoming ETS, please contact RILA’s Michael Hanson.
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