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Where Biden’s vaccine mandate will hit and miss


The Biden administration is preparing to enact vaccine mandates covering workers at large businesses, health care employers, and federal employees and contractors.

The large-business mandate, which affects businesses with at least 100 employees, has the potential to dramatically boost the number of vaccinated Americans in counties where adult vaccination rates are lagging, according to a POLITICO analysis of U.S. Census Bureau and CDC data. Even so, pockets of unvaccinated adults would remain due to business size and because the mandate would not affect adults who aren’t working.

What you need to know about the mandate and its effects:

1. Most workers — many of whom work in counties with low vaccination rates — will be affected by the vaccine mandate.

The mandate is likely to cover a majority of U.S. workers, most of whom are at companies with far more than 100 employees. Workers at these businesses would have to get vaccinated or submit to weekly Covid-19 testing. The Census Bureau collects data on “firms”: single businesses or groups of businesses owned by the same entity, in the same industry and geographic area. The 2020 release published data as of 2018, and showed two-thirds of U.S. workers are at firms with 100 or more employees.

Nationwide, most employees work in counties where a majority of adults are vaccinated, and a majority of employees work at large firms.

The requirement for large employers, when combined with vaccination mandates for health care workers and federal employees, will likely increase immunization rates, said Dorit Rubinstein Reiss, professor at the University of California Hastings College of the Law in San Francisco.

“I would be careful of making the perfect the enemy of the good here,” Reiss said. “Achieving what we can is important, even if it’s not comprehensive.”

2. Workers who are less likely to be covered are also less likely to be vaccinated.

One-third of Americans in the private sector work at businesses with fewer than 100 employees.

Thirty-four percent of workers in majority small-firm counties are also in counties with low vaccination rates. On the other hand, just 8 percent of workers in majority large-firm counties are also in counties with low vaccination rates.

This is not to say that all adults in high-vaccination rate counties are vaccinated — or that all workers in majority-small-firm counties work for small businesses. But it does mean that there are areas of the country that will be able to largely avoid the Biden mandate.

Those counties — where the mandate would have less of an effect — are mostly in the Great Plains and Mountain West. Though these areas are among the least populated in the country, they could present a long-term challenge to stopping what CDC Director Rochelle Walensky calls the “pandemic of the unvaccinated.”

These sorts of pockets are also largely in states where Republicans have indicated they would go to the courts to stop the Biden administration’s mandate. Two dozen Republican state attorneys general signed a letter sent to the president in September opposing the mandate, calling it “disastrous and counterproductive” and threatening to use “every available legal option” to stop it.

In Texas, where Attorney General Ken Paxton was a signatory on the letter, more than a quarter-million workers are in small counties where less than half of the population 12 and over is vaccinated and where less than half of the workforce works at a large firm. Many of those counties are in northwest Texas and the Texas Panhandle.

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.

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