3. It will be a while before the rule comes into effect — if it ever does.
In addition to legal challenges, implementation of the rule will likely vary by state.
Biden’s order directs the Occupational Safety and Health Administration and Labor Department to mandate vaccination via an emergency temporary standard. These standards take effect immediately and remain in place until there’s a permanent rule that replaces it, usually within about six months of the emergency standard being set.
Even though the standard takes effect immediately, that doesn’t mean it will affect all states at the same time. Twenty-four states, along with Washington, D.C., and two territories are federal OSHA states — so the standard will affect them as soon as it’s in place. Twenty-six states and two territories have OSHA-approved state plans, which give them 30 days after the OSHA rules to implement their own standards. Those standards have to be at least as protective as OSHA’s, so they would not be able to weaken the federal rule on their own.
It could take OSHA several more weeks to develop the standard — and some management-side attorneys have suggested the order could be rendered moot or slimmed down if vaccination rates have risen substantially in the interim or if companies and states have acted on their own to require vaccinations. The Biden administration’s earlier emergency Covid-19 workplace rules requiring mask-wearing, disinfection and social distancing took months to implement and ultimately were limited to just the health care industry.
The Labor Department also must prove there is a “grave danger” to workers in order to use its emergency powers to put the rules in place immediately. (Normally, the rulemaking process requires a public comment period and a proposal period that can span months.) If the Biden administration ultimately doesn’t have to implement the vaccine-or-test order in full — or at all — the administration may face fewer legal challenges and less political flack from the business community and the GOP ahead of a midterm election year.