In nearly every statement other than Biden’s, and in many news reports on the matter, the OSHA rule was described as a “vaccine mandate.” But this is not actually correct. The new rule is better understood as a testing mandate with a vaccine exception—and that distinction could be crucial as it works its way through courts of law and public opinion.
What did OSHA actually do? The agency unveiled what is known as an “emergency temporary standard,” or ETS, on Covid-19 vaccination and testing for most companies with more than 100 workers. The ETS is roughly 490 pages long, with fewer than two dozen pages dedicated to the rule itself and the rest devoted to its justification. It requires eligible companies to do a few things to make vaccinations easier for their employees to obtain: provide paid time off so workers can get vaccinated and recover from any side effects, maintain lists of which workers have already been vaccinated, establish a notification system for workers who test positive, and other administrative requirements. It also generally requires employers to tell unvaccinated employees to wear masks.
What the agency will not be doing is forcing anyone to get a vaccine—at least, not directly. According to OSHA, the ETS requires companies to “develop, implement, and enforce a mandatory COVID-19 vaccination policy.” But—and this is a big but—there is a pretty clear way around this. The affected companies can forgo a vaccine mandate policy if they “instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.”
Imagine that you’re the CEO of a Fortune 500 company. OSHA has effectively presented you with two choices. Your first option is to order your workers to get vaccinated to comply with OSHA’s requirements. Your second option is to order your unvaccinated workers to get regular testing and wear face coverings while on the job. Though the Biden administration is framing the vaccine-mandate part of the ETS as the default and the testing-and-masking part as an exemption to it, there’s no reason it can’t be the other way around. ...
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