Background Press Call on OSHA and CMS Rules for Vaccination in the Workplace

(November 3, 2021)

6:12 P.M. EDT

MR. MUNOZ: All right. Good evening. Thank you, everybody, for joining. Thanks for joining us tonight for an embargoed press call on the forthcoming OSHA and CMS vaccination policies.

As a reminder, this call is embargoed until tomorrow, November 4th at 8:45 a.m., and the entire call will be attributable to "senior administration officials."

On this call you will hear remarks from [senior administration officials].

At the end, we'll have time for some questions. I kindly ask you in advance to keep those questions to one question.

And with that, I'll pass it to [senior administration official].

SENIOR ADMINISTRATION OFFICIAL: Thanks, [senior administration official], and thank you all for joining us tonight.

Before we get into tonight's announcements, let me start with why we're here.

Today, 70 percent of adult Americans are now fully vaccinated - up from less than 1 percent when the President took office. This is tremendous progress, but we know that we need more vaccinations to save lives, strengthen the economy, and accelerate our path out of this pandemic.

That's why the President has been leading on requiring vaccinations, including for federal employees and federal contractors, and has called on employers to do the same. Thousands of employers have answered the President's call and stepped up to implement vaccination requirements covering tens of millions of Americans.

These requirements have already reduced the number of eligible unvaccinated Americans by 40 percent - down from about 100 million to just over 60 million now.

Tomorrow morning, the administration is announcing a series of new policies that will protect workers and drive additional progress in getting millions of Americans vaccinated.

First, the Occupational Safety and Health Administration, OSHA, is issuing a rule to require employers with 100 or more employees to ensure each of their workers is fully vaccinated or tests negative for COVID at least once a week. This rule covers 84 million employees.

Second, the Centers for Medicare & Medicaid Services, CMS, is issuing a rule to require that healthcare workers at facilities participating in Medicare and Medicaid are fully vaccinated. This rule covers more than 17 million workers at approximately 76,000 healthcare facilities around the country.

And third, to make it easy for businesses and workers to comply, we will be aligning the deadline for the previously announced requirement for employees of federal contractors to be fully vaccinated with these new OSHA and CMS rules. This single, consistent deadline across all three requirements is January 4th, 2022.

So, any employee covered by the CMS or federal contractor requirement must have their final vaccination dose by January 4th. And employers covered by the OSHA rule will need to ensure their employees have received their final vaccination dose by January 4th, with at least weekly testing required for unvaccinated employees after that.

Before I turn to my colleagues to walk through the OSHA and CMS rules in detail, I want to underscore the impact these policies will have on our fight against the virus.

Together, the OSHA and CMS rules, along with the other policies the administration has previously implemented, means that over two thirds of all workers in the United States are now covered by vaccination policies.

Many organizations that have adopted vaccination requirements have increased vaccination rates by more than 20 percentage points to well over 90 percent, and compliance is very high.

Higher vaccination rates protect our workers, reduce hospitalizations and deaths. This is good for workers and, importantly, this is good for the economy.

For example, analysts at Goldman Sachs projected these kinds of vaccination requirements could lead to up to 5 million Americans reentering the workforce, as they feel safer going back to work and experience fewer disruptions to things like childcare.

The bottom line is: Vaccination requirements work. And the actions we're taking tomorrow will lead to millions of Americans getting vaccinated, protecting workers, saving lives, strengthening our economy, and helping it to accelerate our path out of this pandemic.

With that, I'll turn it over to [senior administration official].

SENIOR ADMINISTRATION OFFICIAL: Thank you very much. The Occupational Safety and Health Administration is dedicated to ensuring every working person in the country has a safe and healthy workplace.

The unmitigated spread of the coronavirus in the workplace presents a grave danger of illness or death to unvaccinated workers. OSHA has determined that in order to protect workers from this continued hazard, we must issue an Emergency Temporary Standard to protect workers from the spread of coronavirus in the workplace.

The rule we are announcing covers employers with 100 or more employees, firm or company wide, and provides options for compliance to protect their workers.

The standard requires employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at work.

In addition, the ETS requires employers to provide paid time to workers to get vaccinated and paid leave to recover from any side effects that keep employees from being able to work.

While we are encouraged to know that vaccination requirements have already helped cut the number of unvaccinated Americans by nearly 40 percent, it's important to understand that there are still so many workers who are not protected and remain at risk from being seriously ill or dying from COVID-19.

This rule will protect more than 84 million workers from the spread of the coronavirus on the job. OSHA estimates that this rule will save thousands of lives and prevent over 250,000 hospitalizations during the six months after implementation.

OSHA will help employers develop a vaccine or testing requirement program by offering robust compliance assistance to businesses implementing the standard, including sample plans, factsheets, frequently asked questions, and other materials.

OSHA will begin outreach to the regulated community and will continue working to provide businesses the information that they need to comply.

OSHA is committed to ensuring the health and safety of workers in this country, and I want to thank each of you for taking part in this important conversation about how we're doing it.

And now I'll turn over the computer to [senior administration official].

SENIOR ADMINISTRATION OFFICIAL: Thank you very much. Good evening, everyone.

Now that you have had an overview of the standard, I'd like to talk briefly about OSHA's legal authority to issue this standard.

The Occupational Safety and Health Act was adopted to ensure working people in this country have safe and healthy working conditions.

In particular, the OSH Act gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them.

A virus that has killed more than 745,000 Americans, with more than 70,000 new cases per day currently, is clearly a health hazard that poses a grave danger to workers.

The new Emergency Temporary Standard is well within OSHA's authority under the law and consistent with OSHA's requirements to protect workers from health and safety hazards, including infectious diseases.

There is well-established legal precedent for OSHA's authority to evaluate existing scientific evidence and apply data to develop safety and health standards.

OSHA has broad authority to issue and enforce health and safety standards to protect workers in staying safe and healthy on the job - like precautions against bloodborne diseases, excessive noise, and falls from dangerous heights - and now, getting vaccinated against a virus that has taken more American lives than World War One, World War Two, the Vietnam War, and 9/11 combined.

The OSH Act provides that OSHA standards preempt any state occupational safety or health standard "relating to [the same] occupational safety or health issue" as the federal standard OSHA.

This ETS preempts the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19. Thus the standard preempts states, and political subdivisions of states, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a federally approved state plan.

Our mission to make sure workers come home at the end of their shift - our mission is to make sure that workers come home safe at the end of their shift, and OSHA will never hesitate to use its authority to keep workers safe on the job.

Thanks very much.

SENIOR ADMINISTRATION OFFICIAL: Excellent. [Senior administration official].

SENIOR ADMINISTRATION OFFICIAL: Thank you. Good evening. This is [senior administration official].

At CMS, we know that everyone working in healthcare wants to keep their patients safe. That is why CMS is acting to require healthcare workers to get vaccinated now.

Thursday morning, at 8:45 a.m. Eastern Time, CMS will publish an emergency regulation requiring staff vaccinations for COVID-19 across Medicare- and Medicaid-certified healthcare providers including, but not limited to, nursing homes, hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This requirement will cover approximately 17 million healthcare workers across 76,000 healthcare facilities across the country.

When the pandemic first began, CMS focused heavily on infection control measures to address the spread of COVID-19. Today we are focused on getting staff vaccinated as quickly as possible. Including in the regulation and consistent with the other requirements are critical deadlines for healthcare workers across the country to meet.

By January 4, 2022, facilities must ensure that all staff have received the necessary shots to be fully vaccinated - either two doses of Pfizer, two doses of Moderna, or one dose of Johnson & Johnson.

For Medicare- and Medicaid-certified providers, these vaccination regulations supersede all others, including state regulations and those issued by OSHA.

We will ensure compliance with these requirements through our established survey and enforcement processes. If a facility does not meet the requirements, they will be cited by a surveyor and have an opportunity to return to compliance before additional actions occur.

CMS's goal is to bring healthcare providers into compliance; it is not to punish workers or healthcare facilities. However, we will not hesitate to use our full enforcement authority to protect the health and safety of patients.

As more and more businesses, organizations, and states across the country implement vaccine requirements, it's becoming clearer every day: Vaccination requirements are effective.

At Houston Methodist, the first organization to implement a vaccine requirement, 98 percent of their 25,000-person staff got vaccinated. Trinity Health, one of the largest Catholic healthcare systems in the nation, increased its vaccination rate of its 120,000 employees from 75 percent to 96 percent vaccinated and in compliance. Rush University Medical Center in Chicago recently hit 99 percent compliance in vaccination.

Today, more than 2,500 hospitals, or 40 percent of all U.S. hospitals, have announced COVID vaccination requirements, or are in states that have such requirements, for the healthcare workforce. They span all 50 states, the District of Columbia, and Puerto Rico.

Leading healthcare organizations like the American Medical Association, the American Hospital Association, the American Nurses Association, and the American Academy of Pediatricians, which together represent millions of healthcare professionals, called for "mandatory COVID-19 vaccination for healthcare workers to protect the safety of patients and residents of long-term care facilities and make the healthcare sector a leader in COVID-19 vaccinations."

Where requirements have been implemented, we have not seen widespread resignations in the healthcare workforce. In fact, we know that the requirements are an essential tool to protect patients and healthcare personnel.

We're on the right track, but the fight is not over. That's why we're acting to get more Americans to get vaccinated.

With that, I'll turn it back over to [senior administration official].

SENIOR ADMINISTRATION OFFICIAL: Thanks. Kevin, over to you.

MR. MUNOZ: All right. As a reminder, keep your question to one question so we can get as many in as possible.

First, let's go to Spencer Kimball at CNBC.

Q Hi, can you hear me?

SENIOR ADMINISTRATION OFFICIAL: Yep, we can.

Q Okay, great. Yeah, my question is about the OSHA mandate, and it's on enforcement and compliance.

So, after January 4th, what should businesses expect in terms of enforcement? Will there be a robust inspection regime on site? And connected to that, how high will the penalties be for noncompliance?

SENIOR ADMINISTRATION OFFICIAL: Again, this is [senior administration official]. And we at OSHA will be enforcing this rule, just like OSHA enforces any of the other rules that are in place at the agency, where we recognize that the vast majority of employers and workplaces comply with the requirements of an OSHA standard.

And so where we target our focus and our effort are on those workplaces where workers need assistance to have a safe and healthful workplace. That typically comes through in the form of a complaint.

We also will be having some programmed or planned inspections where we do go to workplaces to check to make certain that the workplace is in compliance with the rule.

And again, we'll be doing that just as we do with other rules that are in place. And the penalties that would be issued as a result of those inspections, if we find some deficiencies in the program, are commensurate with any other penalties that we have in place for other standards.

MR. MUNOZ: Let's go to Dee-Ann Durbin at the AP.

Q Thanks. Can you clarify, when you were saying they're commensurate with other - I mean, let's get a - can we get a number here? Can we get something more specific? When
you're saying what's commensurate, what are you talking about? What kind of fine can they expect? Thanks.

SENIOR ADMINISTRATION OFFICIAL: Yeah, so - and again, depending upon the number of violations that would be identified would have some - you know, a significant impact on the scope and scale of the amount of a penalty, that would be cited and put into the citation.

We also have a scale that is increasing with more severe violations. So, for example, if we identify that an employer is willfully violating a standard, then that penalty is significantly higher than a workplace that is not willfully doing so.

And so -

Q Is there a maximum amount?

SENIOR ADMINISTRATION OFFICIAL: Well, so for a standard penalty of $14,000, if there was a single citation, a single violation, a single issue that was wrong, $14,000 would be the approximate penalty.

Q Okay. Thank you.

MR. MUNOZ: All right, let's go to the next question. Dave Shepardson at Reuters.

Q Hey, thanks for doing this. Just briefly, to follow up on Dee-Ann's question, is - the maximum would be $14,000 per employer per - I'm sorry, $14,000 per employee per location. Is that right?

SENIOR ADMINISTRATION OFFICIAL: Sorry - again, this is [senior administration official]. We were muted there for just a second.

So $14,000 per item that would be cited. So if there were multiple items out of the standard that we cited, there would be, you know, multiple penalties that could be issued along with that.

We also would assess whether or not there were multiple violations depending on the number of instances of the violation that we were looking at. So, you know, potentially there could be multiples of that. But it would depend upon the situation during the inspection and the evidence that was presented.

Q Okay. Just to - so my question was, broadly: Obviously, this is a big - it will give some relief to federal contractors and others as it pushes the deadline, you know, past the holiday season. Can you talk a bit about what your thoughts were; why you opted to make everything effective on January 4, as opposed to holding to that December 8th deadline?

SENIOR ADMINISTRATION OFFICIAL: Thanks, Dave. I can take that one. Look, I think, for us, we wanted to do this because we're really aligning it to make it easier - to make it as easy as possible for businesses to implement these requirements and for workers to comply.

That said, there's no reason to wait, and we hope that - and we know that many employers are not waiting. And we hope that employers and workers will get vaccinated as quickly as possible, because that's obviously our path out of this pandemic.

MR. MUNOZ: Great. Next question. Let's go to Rachel Roubein at the Washington Post.

Q Hi. Thanks. I have a question for [senior administration official]. Can you also detail what the enforcement mechanism is for health facilities? Essentially, like, would they be kicked out of participating in the Medicare and the Medicaid program, or is that further down the line? Thanks.

SENIOR ADMINISTRATION OFFICIAL: Sure. So this is [senior administration official]. So there are a series of remedies that we would take to make sure that facilities are in compliance with our vaccine requirement. So, first, we want to work with facilities. And tomorrow, we will be having a listening session and really walk through all of the requirements and details to answer any questions. So, we really want to work with them.

If a facility were not making steps to come into compliance, we have a range of remedies. That could be civil monetary penalties. We could also deny payment, and as a - certainly, as a last resort, terminate them from the Medicare and Medicaid programs.

But I would just want to emphasize that our goal is to bring healthcare facilities into compliance. And termination would really only occur if, after providing a facility with an opportunity to make corrections and come into compliance, they chose not to do so.

MR. MUNOZ: All right. Next question. Let's go to Maureen Groppe at USA Today.

Q Hi. I want to ask about the 21 states that run their own workplace safety programs. How much time are they going to have to adopt either this standard or one equally as strong? And are you prepared to take over their programs if they don't meet that deadline?

SENIOR ADMINISTRATION OFFICIAL: Thank you. [Senior administration official], can I turn to you?

SENIOR ADMINISTRATION OFFICIAL: Yes, thanks, [senior administration official]. And so, this is [senior administration official] again. And to also back up to the prior question - one clarification: The questions talked about an OSHA mandate. And just keep in mind that the OSHA rule coming out is not a mandate for a vaccine; there's a - employers can put in a mandatory vaccination program, or there's the other route of vaccination for those who choose to, and testing and masks for those other employees that don't. So, just wanted to make sure that was clear.

And also, you know, we use the $14,000 for a serious OSHA citation violation amount. The real, actual amount is $13,653, just to be clear with that.

And for - we referred to the willful penalties. That amount is $136,532. So, you know, again, just to make certain we're providing you with the clear information.

As far as the state OSHA programs in the 21 states that operate those programs, we'll have a 30-day window for them to implement this rule once the Federal Register is published later this week. And they will need to put in place this rule or a rule that is at least as effective as this rule.

And then, you know, we certainly - at OSHA, we have a long history of working with state plans to make certain that they are providing at least as effective as safety and health provisions. And we'll continue to do that.

But it's also, you know, OSHA's responsibility to ensure that state plans are at least as effective as. And so, we certainly will do everything that is necessary to ensure that that's the case in this instance for this standard.

Q So that would include potentially taking over the state programs?

And one of the reasons I ask is because three states have already missed the deadline for complying with your earlier standard in June.

SENIOR ADMINISTRATION OFFICIAL: Correct. Three states. And we are working with those three states. And they're - within the last couple of weeks, we've provided them with the preliminary notification that we're going to be assessing the program to make certain that it is at least as effective as.

And as we walk through that process, one option at the end of that, for the OSHA Assistant Secretary to determine, would be to move that state from being a full state program to having less of the authority and code enforcement in some cases with federal OSHA.

MR. MUNOZ: All right. Next question. Let's go to Anne Flaherty at ABC.

Q Hi. Thanks for taking my question. This is probably for [senior administration official]. How much of the holiday season and the current worker shortage factored into your decision to push the deadlines until January 4th?

SENIOR ADMINISTRATION OFFICIAL: Thanks. Thanks very much, Anne. I think, you know, we know that some employers have - may have workplaces subject to requirements for the federal contractors and other workplaces subject to the ETS rule. And so, as I said, in order to make it easier for businesses to comply and workers to comply, we've decided to align the contractor deadline with the deadline for both CMS and OSHA.

So, this is not a reason to wait, of course. You know, we know that vaccines help reduce absenteeism. We know they protect workers. We know they create a safer and healthier workplace, which workers want. But that's the reason we decided to align the three policies.

MR. MUNOZ: All right. And last question, let's go to Courtney Rozen at Bloomberg.

I'm not seeing Courtney unmute. So, we have time for one more question. Let's go to Nate Weixel at The Hill.

Q Can you hear me?

SENIOR ADMINISTRATION OFFICIAL: Hi. Oh, who -

Q Hi, it's Courtney.

SENIOR ADMINISTRATION OFFICIAL: Hi, Courtney.

MR. MUNOZ: Two more questions. Hi, Courtney. Let's go.

Q Hi. Sorry. I haven't heard anyone mention, for the CMS rule, religious and medical exemptions. Can you talk about how you'll handle those?

SENIOR ADMINISTRATION OFFICIAL: There are exemptions. This is [senior administration official] speaking. There are exemptions for people with medical conditions that do not permit them to be vaccinated or for religious exemptions.

Q And how will you handle processing those?

SENIOR ADMINISTRATION OFFICIAL: It is the responsibility of the facility to have a plan in place to make sure they comply with the exemptions that we outline in the rule.

MR. MUNOZ: All right. Nate, you're up last.

Q Thanks. Just to piggyback on that: For the CMS rule, is there a testing option, or is it only for exemptions?

SENIOR ADMINISTRATION OFFICIAL: There is not a testing option. We have a higher bar for healthcare workers, given their critical role in ensuring the health and safety of their patients. And so, it's either vaccination or an exemption under the rules outlined.

MR. MUNOZ: Thank you, [senior administration official]. All right, thank you, everybody, for joining tonight's call.

As a reminder, this is attributable to "senior administration officials" and it's embargoed - as well as the factsheet that I sent out - until 8:45 a.m. tomorrow.

Thank you, everybody.

6:42 P.M. EDT