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Businesses Await Guidance on COVID-19 Vaccination vs. Testing Procedures

  • White House office is reviewing COVID-19 vaccine mandate drafted by the Occupational Safety and Health Administration
  • Biden administration has proposed mandating the vaccine for workers at companies employing at least 100 people
  • Rule is expected to address numerous questions, including when the mandate would go into effect and who would be responsible for the cost of testing

Summary by Dirk Langeveld

Businesses are awaiting answers to numerous questions on a vaccine mandate proposed by the Biden administration, as the White House is giving final review to a rule developed by the Occupational Safety and Health Administration.

The administration has proposed a mandate for companies with at least 100 employees. This would be established through an OSHA temporary emergency standard and is expected to impact more than 130,000 companies and 80 million employees, or more than two-thirds of the United States workforce. Businesses flouting the rule could face a potential penalty of $14,000 per violation starting in 2022.

The White House’s Office of Information and Regulatory Affairs is reviewing the matter, and the final rule could be published in the Federal Register as early as this week. While emergency temporary standards go into effect immediately, businesses are typically given a small window of time to comply with the new rules.


When COVID-19 vaccines began their large-scale rollout in the spring, many companies began making plans to return employees to the workplace. While businesses were generally not in favor of mandating the doses, they often supported efforts to encourage or incentivize them.

However, vaccinations slowed with millions of people still not getting a shot, and the nation experienced a fourth surge of COVID-19 infections in the late summer due to the spread of the Delta variant. Airlines and other large companies began announcing that they would require workers to get vaccinated, with their number swelling after the Food and Drug Administration gave its full approval to the Pfizer vaccine.

The Biden administration has encouraged the private sector to establish their own vaccine mandates and step up efforts to encourage vaccination. There are approximately 65 million people in the U.S. who are eligible for a vaccine but haven’t gotten one, and the White House hopes that the OSHA rule will be a firmer measure that convinces more of these people to get the dose and avoid further pandemic-related economic disruptions.

Vaccine mandates issued by state and local governments, as well as those implemented by private companies, have had a significantly high rate of compliance. Only a tiny fraction of workers have been terminated for refusing to abide by these mandates, while the majority have either gotten vaccinated or received an exemption, agreeing to be tested for the virus on a regular basis.

Some businesses have criticized the size limit of the proposed mandate, saying it could drive workers to smaller companies where a mandate is not required. Critics also charge that businesses with just under 100 employees may hold off on expansion plans so they aren’t subject to the mandate, and that a vaccine mandate will further complicate an uncertain economy as businesses grapple with ongoing labor shortages and supply chain issues.

Unanswered questions

It is uncertain whether the rule will go into effect right away or if it will be delayed. Numerous business and industry groups have met with the Biden administration to offer feedback on the issue, and some have asked for the mandate to be delayed until the start of the new year in order to avoid potential workforce disruptions during the busy holiday season.

One question often posed by businesses is who will pay for the cost of testing for employees who get an exemption from the vaccination rule. Some industry groups have suggested that companies should have the ability to pass on the cost of these tests to unvaccinated employees.

Other questions include how employers can verify employees’ vaccination status, whether the rule will establish other COVID-19 safety protocols, and whether remote workers should be subject to the mandate. Some industry groups have also sought exemptions from the rules; for example, the National Association of Manufacturers holds that it has advocated for workers to get vaccinated but worries that a mandate will result in an increased quits rate among its workforce.

Legal challenges

The proposed mandate is being threatened by numerous business challenges, including from business groups and Republican attorneys general. Some state officials have actively pushed back against vaccine mandates, with Texas Governor Greg Abbott issuing an executive order barring private businesses from establishing such mandates and Florida Governor Ron DeSantis urging the state’s legislature to pass a law forbidding employers from terminating workers who don’t get the shot.

Some challenges question whether OSHA has the authority to issue such a mandate. Emergency temporary standards bypass the traditional regulatory process in order to protect workers from a “grave danger,” and critics charge that this only allows OSHA to address workforce-specific hazards rather than overarching risks like COVID-19.

Emergency temporary standards have had a mixed record in recent decades. Of the 10 times the agency has issued the standards since 1970, courts have vacated the standards on four occasions and partially vacated them on one occasion.

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