How the OSHA vaccine and testing mandate might play out for local businesses

Large employers are reviewing the new OSHA rule mandating vaccinations or testing for employees.Jeff Chiu/Associated Press

Local businesses and legal experts have been poring over a 490-page document released last week to determine the implications of the Biden administration’s COVID-19 vaccine and testing mandate for large employers.

First outlined by President Biden in September, the measure is part of a sweeping effort intended to get more Americans vaccinated. Workers at businesses with more than 100 employees would need to be vaccinated against COVID-19 by Jan. 4 or get tested on a weekly basis and wear a mask. The mandate, drafted by the Occupational Safety and Health Administration, would cover some 84 million Americans.

A federal appeals court on Saturday temporarily halted the rule from going into effect, citing “grave statutory and constitutional issues,” and dozens of other suits have been filed to block it. The White House has said it expects the OSHA mandate to withstand legal pushback, and on Monday it moved to combine all challenges filed into one federal court.

The rule may not face much resistance among businesses in states like Massachusetts and Rhode Island, where about 70 percent of the adult population already is vaccinated. Large employers like State Street, HubSpot, and Moderna have previously announced vaccine requirements for their employees.

Businesses without prior vaccination mandates, including Fidelity Investments, MassMutual, and Thermo Fisher Scientific, would now have about two months to implement a policy. Others are somewhere in the middle: TJX Companies, the Framingham-based parent of retail stores including Marshalls and TJ Maxx, has a vaccine mandate for office-based workers, but would soon be required to roll out a plan for thousands of retail workers in its stores. CVS, based in Woonsocket, R.I., faces a similar situation.

Several companies — and the Baker administration — told the Globe that they are still making sense of the OSHA document. Questions remain around which workers the rule applies to (not those who are fully remote, for example), and who will pay for testing.

“We are currently reviewing the OSHA guidance to understand what it will mean for our company and employees,” said Julie Staadecker, a spokeswoman for MassMutual, which has 4,000 employees based in Massachusetts. About 86 percent of the company’s workforce is vaccinated, she said.

Jeffrey Gilbreth, a partner in the labor and employment practice at law firm Nixon Peabody in Boston, said many companies have been preparing for the mandate since early September.

“I don’t think this should be catching many employers, at this point, flat-footed,” Gilbreth said. “Today is not going to have a major impact on a lot of my clients, because they already have their own policies and procedures ... but if you have a large percentage of unvaccinated people, this is a big deal.”

According to an October survey by the Kaiser Family Foundation, one in four US workers said their employer already has required them to get vaccinated. Most companies support having employees fully vaccinated, but others have been hesitant, fearing that a mandate could spark lawsuits or resignations.

The study found that 37 percent of unvaccinated respondents said they would leave their job if asked to get vaccinated or agree to weekly testing. But Liz Hamel, the vice president and director of public opinion and survey research at KFF, said that probably overstates the number of people who would actually quit.

“If you work in an industry where any employer you want to work for has more than 100 employees, then you’re not going to do yourself any favors by quitting,” Hamel said.

OSHA said its rule does not require employers to pay for face coverings or weekly tests for unvaccinated employees, but companies might have to adhere to other laws or collective bargaining agreements.

Tracy Thomas Boland, a partner in the labor and employment group at Bowditch & Dewey, said she doesn’t think companies in Massachusetts will be able to pass on the cost of testing to employees because of existing state laws about business expenses. Employers would probably need to compensate employees for the time spent getting tested every week, too, if completed outside of work hours.

“Employers say, ‘If we do a testing option, [employees] have to pay for that, right?’” she said. “And I have to tell them that here, and in states like ours, employers are going to have to bear that cost.”

Legal experts said businesses could choose to implement a stricter vaccine mandate to avoid conflict over who should pay for weekly testing. The Boch Center, which manages the Wang and Shubert theaters, implemented a vaccine mandate for all of its employees and vendors on Sept. 14, and chief executive Joe Spaulding said he doesn’t plan to allow weekly COVID-19 testing in lieu of vaccines.

OSHA, meanwhile, said it “needs additional time” to determine whether it would be feasible to implement a similar mandate for smaller businesses with under 100 employees.

“There’s a possibility that OSHA isn’t done, and small employers might have obligations in the coming months,” said Erika Todd, a litigation expert at Sullivan & Worcester.

That isn’t welcome news for small-business owners like Erinn Danielle, who runs Simply Erinn’s Unisex Hair Salon in Cambridge and isn’t vaccinated. She doesn’t think she should be forced to require her two employees to get vaccinated or test weekly.

“They better leave small businesses alone; we have enough to deal with,” she said.

Although private employers can give employees the option to test weekly or get vaccinated, health care workers at facilities participating in Medicare and Medicaid programs and federal contractors do not have that option. The Centers for Medicare & Medicaid Services on Thursday said health care workers must be vaccinated by Jan. 4, and the Biden administration extended its Dec. 8 deadline for federal contractors to the same date in January to “make it easy for businesses and workers to comply.”

Raytheon’s chief executive has said he expects the company will lose 3 percent of its 125,000-person workforce nationally because of the mandate, and GE’s union claimed the company didn’t give workers enough time to bargain over how the mandate will play out.

One company in a gray area regarding mandates is Cambridge-based Akamai Technologies.

The company said employees that work on, or in connection with, federal government contracts fall under the vaccine mandate, whether they work in-person or remotely. For those who don’t work on contracts, there is a vaccine mandate for those going into the office, since Akamai is a large private employer. But the company hasn’t officially reopened its office since the start of the pandemic.

“Regarding those who work remotely, but not in support of Akamai’s federal contracts, we are in active discussion and have yet to land a decision,” said Gina Sorice, a spokesperson for Akamai.

It’s a wrinkle that many companies may face as remote work persists: OSHA’s rule for private employers doesn’t apply to people who work remotely 100 percent of the time, or those who work mostly outdoors.

“If you were to have everybody who could work from home doing that, you could avoid this mandate,” Boland said. “Of course if you are a restaurant, that is not going to work for you.”