What a new OSHA vaccination rule could mean for schools in 21 states

By: | November 4, 2021

A new rule from the Department of Labor’s Occupational Safety and Health Administration requiring COVID-19 vaccinations or weekly testing and mandatory face coverings for private employers with more than 100 employees could soon apply to state and local educational agencies in 21 states with OSHA-approved state plans.

“Under Section 18(c)(2) of the OSH Act, state plans are required to adopt and enforce occupational safety and health standards that are at least as effective as federal OSHA’s requirement,” according to a draft of the rule to be published in the Nov. 5 edition of the Federal Register. “In addition, the OSH Act requires that state plans must cover state and local government employees (including, e.g., state and local school systems within the scope of this rule), even though federal OSHA does not have coverage over such employees in states without OSHA-approved state plans.”

This means that in the 21 states that currently have OSHA-approved state plans, state and local school systems that fall under the purview of the state plans would be required to implement one of the following:

  • Mandatory vaccinations
  • Weekly COVID tests and mask mandates
  • A policy that lets employees choose between vaccination or weekly testing and masks.

Those states include Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.

The rule would apply to private schools and some charter schools, depending on their governance structure, in all 50 states, according to a report from the Congressional Research Service, OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities: COVID-19 Issues.

The rule, effective upon publication in the Federal Register, would require private employers to meet the requirement by Jan. 4.

“As far as 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,” stated a senior administration official during a Nov. 3 press briefing to discuss the rule. “And they will need to put in place this rule or a rule that is at least as effective as this rule.”

Education stakeholders applauded the rule. “Once again, the Biden administration has stepped up to keep workers safe and crush the scourge of COVID so we can continue to pave a pathway out of this pandemic,” said American Federation of Teachers President Randi Weingarten. “These common-sense actions will save thousands of lives and curb hospital stays that are not only devastating for patients but harrowing for the frontline workers charged with their care.”

Charles Hendrix covers education funding and other Title I issues for LRP Publications.