OSHA Poised To Expand Employer Vaccine Mandate To Smaller Businesses?

Even though the Biden administration announced Wednesday that it is temporarily suspending the Occupational Safety and Health Administration’s COVID-19 vaccine mandate for private employers of 100 people or more, documents from the administration show that OSHA is considering expanding the mandate to small businesses, requiring fully-vaccinated people to wear masks in the workplace, and mandate that people who have natural immunity after recovering from COVID-19 receive the vaccination anyway.

OSHA released the official text of its Emergency Temporary Standard (ETS) earlier this month and opened the public comment period on November 5. Federal regulatory bodies customarily invite the public to comment on new rules for 30 days or more after a rule is published — but the specific feedback the administration asked employers to provide shows that federal regulators intended to expand the controversial rule much further.

“In particular, OSHA seeks comments on the following topics,” the federal document states. The first people OSHA wanted to hear from are “employers with fewer than 100 employees,” who may be the next category subject to a federal vaccination mandate.

The document states openly, “The agency is moving in a stepwise fashion on the short timeline necessitated by the danger presented by COVID-19 while soliciting stakeholder comment and additional information to determine whether to adjust the scope of the ETS to address smaller employers in the future.”

“OSHA seeks information about the ability of employers with fewer than 100 employees to implement COVID-19 vaccination and/or testing programs,” it continues.

Later, the document makes clear that OSHA regulators are considering requiring face masks for fully-vaccinated people — and vaccinations for people with natural immunity.

“How should the scope of the rule change to address the significant risk posed by COVID-19 in the workplace? Should portions of the rule, such as face coverings, apply to fully vaccinated persons?” the document asks would-be commenters.

Furthermore, while OSHA admits that the extent to which “workers who have been infected with COVID-19 but have not been fully vaccinated still face a grave danger from workplace exposure to SARS-CoV-2” is “an area of ongoing scientific inquiry,” OSHA cites this uncertainty to demand the vaccination of those who have recovered and may still have high levels of antibodies. “Given scientific uncertainty and limitations in testing for infection and immunity, OSHA is concerned that it would be infeasible for employers to operationalize a standard that would permit or require an exception from vaccination or testing and face covering

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