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What employers should know about new OSHA rule for vaccine mandates

Health and Benefits|Wellbeing
COVID 19 Coronavirus

By Jeff Levin-Scherz, MD | November 9, 2021

As vaccinations for children continue, a new federal rule requires certain employers to develop, implement and enforce a mandatory COVID-19 vaccination policy.

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About our “The COVID-19 Crisis” series

“The COVID-19 Crisis” series is a weekly update by Dr. Jeff Levin-Scherz covering the latest developments related to the COVID-19 pandemic in the U.S. Explore the entire blog series.

COVID-19 cases in the U.S. are steady – at about 70,000 new cases per day. Hospitalizations declined about 7% (5,025 new hospitalizations daily) and deaths are averaging about 1,100 a day, down from over 1,200 a week ago.

New cases remain similar to last weeks numbers, while death rates decline.
Daily trends in number of COVID-19 cases and rate of death in the U.S. reported to the CDC

Source: CDC, November 5, 2021

Three percent fewer counties have a high rate of community transmission (>100 cases per 100,000 residents per week) and 3% more counties are down to a moderate rate of community transmission (<50 cases per 100,000 residents per week).

Implications for employers: Currently, almost 90% of counties still have substantial or high rates of community transmission, so employers should evaluate local conditions to help guide their back-to-the workplace plans.

OSHA publishes new Emergency Temporary Standards

The Occupational Safety and Health Administration (OSHA) published its Emergency Temporary Standards (ETS) for COVID-19 vaccine mandates last week. The full document is in the Federal Register, and a summary is provided. Employers should take note of subsequent compliance deadlines.

Key takeaways:

  • The ETS applies to employers with over 100 U.S. workers. It specifically does not apply to:
  • The ETS does not cover remote workers and those who work exclusively outdoors
  • Companies must have:
    • Policies requiring full COVID-19 vaccination by January 4, 2022 (or policies requiring weekly testing)
    • Programs to verify and track employee vaccination status
    • Paid time off for vaccine and to recover from adverse vaccine affects
  • Companies are allowed, but not required, to offer a weekly testing option beginning in early January, however:
    • Companies are not required to pay for the cost of this testing
    • Those who are not vaccinated must mask indoors
  • Companies must remove any employee with a positive test or a diagnosis of COVID-19 from the workplace and follow the Centers for Disease Control and Prevention (CDC) guidelines about when they can return to work.
  • The January 4, 2022, deadline is for full vaccination. Here are deadlines for when employees must get their initial vaccine dose to meet this requirement given the recommended dosing intervals:
    • Johnson & Johnson: December 21, 2021
    • Pfizer: November 30, 2021
    • Moderna: November 21, 2021
  • The deadline for full vaccination of employees of federal contractors has been moved to January 4, 2022 (to align with OSHA guidance).

Implications for employers: An appeals court temporarily suspended these regulations. Although it will likely take weeks for the issue to be resolved in court, employers should continue to prepare to meet the requirements as they undergo judicial review.

Some reflections on vaccine mandates

Vaccine mandates are nothing new.

George Washington saw smallpox decimating his troops during the Revolutionary War, and mandated that his soldiers get variolated. (They were scraped with pus from a smallpox sore; safer vaccines were later created from the less dangerous cowpox virus.) Some say that this is part of the reason we won the Revolutionary War.

Elementary, middle and high schools routinely mandate vaccines. Protection against measles is especially important, as communities with immunity rates of less than 95% leave schools at risk for measles outbreaks. Before measles vaccines, there were as many as 4 million cases a year in the U.S., with 48,000 hospitalizations and 1,000 cases of disabling or deadly encephalitis. Rubella, also known as German measles, caused 11,000 miscarriages and stillbirths and 20,000 children were born with congenital rubella syndrome during the last major epidemic in 1964 – 1965 before vaccination was available. The measles, mumps, rubella (MMR) vaccine protects against both diseases. There were 21,000 cases of paralysis from polio in the U.S. in 1952 before vaccines were available. There have been no cases of polio that originated in the U.S. since 1979 due to vaccination.

Colleges have also instituted mandates to prevent epidemics, given that many students are often congregated in small areas. Most colleges require the MMR vaccine, and many require vaccines to protect against meningitis and influenza. Here’s an example of a university requiring these as well as vaccination for pertussis (TDaP) and vaccination or proof of immunity to chickenpox for students. Hospitals and other healthcare organizations almost always require vaccinations. This can include hepatitis B, which can be spread by needlesticks and influenza. Healthcare providers who are not vaccinated represent a risk to themselves and also a risk to colleagues and to patients.

The military has long required vaccination appropriate for a service member’s age and additional vaccinations based on geographic risk and risk of bioterrorism. In the early 2000s the military mandated smallpox vaccines for about 500,000 people, even though the last case of smallpox in the U.S. was in 1949, and the disease was declared eradicated globally worldwide in 1980. Here’s a list of vaccines required by the military by command area.

Employers outside of education and healthcare have generally not implemented vaccine requirements – because, in general, they haven’t had to. Mandates at schools have meant workforces are already well vaccinated. But the pandemic is brand new, so employers can’t count on having an adequately protected workforce based on vaccine requirements from high school or college.

Many employers worry that in a tough job market employees will leave based on mandates. Tyson Foods, where meat processing workers suffered high rates of COVID-19 infections in 2020, was an early mover in mandating vaccines. Their vaccination rate is now up to 97%, and few workers departed.

Experience so far shows that few will give up their jobs, and research studies show that mandates are likely to be more effective at getting people vaccinated than any other employer strategy.

Implications for employers:

  • Vaccine mandates are commonly used, and employers can “frame” vaccine mandates as a normal part of doing business.
  • Experience and survey-based research suggests that very few employees will leave their jobs due to vaccine mandates.

Vaccines approved for those ages five to 11

The CDC approved the Pfizer COVID-19 vaccine for use in those ages five to 11 last week. The Food and Drug Administration (FDA) gave this emergency use authorization last week. Providers in Connecticut administered the first doses the evening of the CDC announcement. I’m happy that my six-year-old grandson has an appointment for a vaccine. His mom, a pediatrician, is overjoyed.

While most children have mild symptoms from COVID-19, some get desperately ill, and about 173 children ages five to 11 have died. Children are an important part of the transmission chain – vaccination of kids can help prevent hospitalization and death of older and more vulnerable adults. Finally, widespread vaccination will lead to much less disruption in schools and can allow kids with compromised immune systems to go to school safely. Children at fully vaccinated schools can more safely remove masks.

Implications for employers:

  • Parents might need scheduling flexibility to get their kids vaccinated.
  • We should expect fewer school interruptions, which is excellent for employers and employees.

New Pfizer oral drug shown to be highly effective at preventing hospitalization and death

Pfizer released data from a research trial showing that its new oral antiviral, Paxlovid, is highly effective at preventing hospitalization or death when given within three or five days of diagnosis of COVID-19 in high risk patients. The trial showed an overall 89% effectiveness at preventing hospitalization and death, and there were no deaths among those who received active drugs in the trials and 10 deaths among those who received placebos.

Paxlovid trial results

Treatment within 3 days
Number Hospitalized Deaths
Drug 389 3 0
Control 385 27 7
Treatment within 5 days
Number Hospitalized Deaths
Drug 607 6 0
Control 612 41 10

This drug is especially promising because it acts by preventing a chemical reaction necessary for the virus to replicate. The Pfizer drug is very similar to drugs used for HIV for many years (and needs to be co-administered with a small dose of an anti-HIV drug (ritonavir, which is available as a generic drug, to decrease metabolism and keep drug levels higher). The new Merck drug, Molnupiravir, which is used to treat those with COVID-19, causes genetic damage to the virus and is likely not safe in pregnancy and might have longer-term adverse effects.

Safe, oral medications could be used early to prevent hospitalization in the unvaccinated, in those who are vaccinated but have breakthrough infections and in those whose immune systems are compromised. Pfizer is now testing this drug to prevent infection in household contacts of those with COVID-19.

Implications for employers:

  • Safe oral medications that treat early COVID-19 and prevent hospitalizations are an important part of the way we can learn to live with the coronavirus in coming months and years.
  • This drug will be medically very valuable. Pfizer is still presenting data to the FDA to seek emergency use authorization or approval, and there is no word on potential pricing.
  • The federal government has announced that it has procured early supplies of Paxlovid.

Population Health Leader, Health and Benefits, North America

Jeff is a practicing physician and has led WTW’s clinical response to COVID-19. He has served in leadership roles in provider organizations and a health plan, and is an Assistant Professor at Harvard Chan School of Public Health.

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