Public Employers:  Does the President’s Vaccine Mandate Apply?

By Tracy Watts

Senior Partner, National Leader for U.S. Health Policy

By Rich Glass

Principal, Mercer’s Law & Policy Group

Here at Mercer this past week we’ve spent a lot of quality time focused on the federal Occupational Safety and Health Administration – aka OSHA – and its primary law known by the same acronym. OSHA's mission is to "ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education and assistance". As we await the Emergency Temporary Standard (ETS) for the mandate to get the COVID-19 vaccine or get tested, questions have been raised about which employers are or aren’t covered by the ETS.

Specifically: Does the ETS cover state and local governments, including public schools?  

The short answer: Yes – in 26 states, Puerto Rico and the U.S. Virgin Islands.

The more detailed answer: Public school districts, state and local governments are not subject to federal regulation, inspection or enforcement by OSHA. However, OSHA authorized states to establish their own state OSHA plans with two stipulations. State OSHA plans must:

Be “at least as effective” as OSHA’s standards and enforcement
Include state and local government employers, including public school districts

For still more details, see this Congressional Research Service report that was updated on Monday, Sept. 13. OSHA-approved state plans in 21 states and Puerto Rico cover private and state and local government employers, including public school districts. Another five states and USVI only cover state and local government employers, including public school districts. So if you are a public employer or school district in one of these states/territories, look for an update soon from your state.

Once OSHA issues the ETS, the above states will have 30 days to either adopt the federal ETS or amend their standards to be “at least as effective” as the ETS, according to an OSHA FAQ. OSHA’s limited reach is presumably why President Biden’s COVID-19 Action Plan was phrased this way: “Calling on All States to Adopt the Vaccine Requirements for All School Employees.”

A few final observations:

The COVID-19 Action Plan does apply to employees in Head Start programs, Department of Defense schools and Indian education-operated schools in all 50 states.
OSHA does not prohibit the 24 states (or the District of Columbia) without an existing OSHA-approved state plan from voluntarily adopting OSHA’s ETS or a similar standard to apply to its state and local government employers, including public school districts.
Similarly, OSHA does not apply to the federal legislative and judicial branches of government.