Does the Large Employer OSHA Vaccination Rule Meet the Grave Danger Standard?

Large employers required to mandate covid vaccinations or weekly testing

The Biden administration is calling on all employers to ensure that as many of their workers are vaccinated as quickly as possible and has pushed OSHA to release a large employer vaccination rule that will be effective January 4, 2022.

According to the White House announcement, vaccination requirements could result in as many as 5 million American workers going back to work. The rule will require:

  • Workers to be fully vaccinated against COVID-19 by January 4th or test negative for COVID-19 at least once a week.
  • Employers to provide up to four hours of paid time off for workers to get vaccinated during business hours as well as provide sick leave for workers to recover from any side effects. This is not required to employees who choose to receive the vaccine outside of their regular work hours.
  • Workers to incur the cost of testing. Employers are not required to pay for or provide testing to workers who decline the vaccine. However, collective bargaining agreements or other circumstances may dictate otherwise in some cases.
  • Unvaccinated workers to also wear face coverings while on the job by Dec. 5th.

However, federal appeals court temporarily blocked the Biden administration’s new vaccine rules that could apply to larger employers and 84 million workers.

The courts will have to prove that the virus still poses a “grave danger” to employees since ordinary OSHA rulemaking requires an emergency rule to pass the “grave danger” standard.

Does “Grave Danger” apply for this OSHA rule?

OSHA estimates that there are still more than 26 million unvaccinated workers in the United States.

If this rule is implemented, OSHA estimates that the standard will save the lives of 6,500 workers over six months.

This alone should justify the “Grave Danger” standard. But there is more data to back up the number of worker deaths that have happened.

The Centers for Disease Control and Prevention cites that an unvaccinated working-age person has a 1-in-202 chance of dying if they contract Covid–19.

Sadly, we have seen this most prevalent in the health care system.

WHO estimates that between 80,000 and 180,000 health care workers across the globe could have died from COVID-19 in the period between January 2020 to May 2021.

Here in the U.S. during the latest Fall Delta variant spike, Spectrum Health hospitals in Idaho shows that 94% of its COVID patients in ICU are unvaccinated.

Additionally, Spectrum’s data found that:

  • 85% of Spectrum’s COVID inpatients are unvaccinated
  • 94% of COVID patients in Spectrum’s intensive care units are unvaccinated
  • All but one of the COVID patients on a ventilator as of Wednesday were unvaccinated
  • Vaccinated patients are averaging a 1 to 2 day shorter hospital stay
  • The average age of ICU vaccinated patients is about 75 compared to about 50 for unvaccinated patients in ICU
  • Average age of vaccinated people who go on a vent is about 30 years older than ventilated patients who are unvaccinated

Today, Penn Medicine Lancaster General Hospital data shows that 74% of inpatients are unvaccinated while 93% of ICU patients and 91% of ventilators patients are unvaccinated.

According to Michael Duff, a visiting professor at the Saint Louis University School of Law, “For a court to rule against the emergency temporary standard would have to conclude that COVID-19 is not life-threatening.”

As we wait for the OSHA rule to make its way through the courts, employers still have an important role to stop the spread of COVID-19 in the workplace.

What can employers do today to keep their workplace safe?

CNS Occupational Medicine offers services to contribute to your company’s Return-to-Work Plan, including pre-shift screenings meant to test employees before starting their shifts. Risking the health of your employees and your business is not worth it. 

Start your customized health plan to meet your business needs and keep your employees healthy and safe.

For more information, contact us at 800.551.9816 or

Please be advised that all articles, blogs and written material are not intended to replace the advice of a physician.

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