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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
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which would provide notice of COVID
19 hazards and describe feasible means of abating them, enabling OSHA to later issue a General Duty Clause citation to an employer who had failed to follow that guidance. OSHAs enforcement experience has now disproven that theory. As explained above, existing standards leave an enormous regulatory gap that OSHAs guidance, together with the General Duty Clause, cannot cover for the settings covered by this ETS.
In practice, the combination of guidance and General Duty Clause authority has done little to protect employees in settings covered by the standard where employers were not focused on that goal. The limitations identified above, including the heavy litigation burden for General Duty Clause citations, remain. Instead of being able to rely on clear requirements in a standard, employers were left to wade through guidance not only from OSHA but also from multiple other agencies, states, media, and other sources without any clarity as to how the different guidance materials should work together or what to do when alternative guidance did not square with OSHAs guidance. Perhaps because OSHAs guidance was not mandatory, it was frequently ignored or followed only in part. As explained above, the General Duty Clauses shortcomings as an enforcement tool left OSHA, in most cases, ultimately unable to impose all of the layers of protection necessary to protect employees from COVID19.
In sum, based on its enforcement experience during the pandemic to date, OSHA concludes that continued reliance on existing standards, together with the combination of guidance and General Duty Clause obligations, in lieu of an ETS, will not protect employees covered by this ETS against the grave danger posed by COVID19.
g. Recent Vaccine Developments Demonstrate the Importance of the ETS;
They Do Not Obviate the Current Need for an ETS
The development and availability of safe and highly effective vaccines is an important development in the nations response to COVID19. The very low percentage of breakthrough cases illness among vaccinated people have led to recent updates to CDC guidance acknowledging vaccination as an effective control to prevent hospitalization and death from COVID
19 to such an extent that the CDC has concluded that most other controls are not necessary to protect vaccinated people outside healthcare settings. In the United States, all people ages 12 and
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older are eligible to be vaccinated, and vaccines are readily available in most parts of the country.
However, despite the remarkable success of our nations vaccine program and the substantial promise that vaccines hold, as explained below, OSHA does not believe they eliminate the need for this standard. OSHA
embraces the value of vaccination and views the ETS as essential to facilitating access to this critical control for those workers who wish to receive it while still protecting those who cannot be, or will not be, vaccinated. And by excluding certain workplaces and welldefined work areas where all employees are fully vaccinated from all requirements of the standard paragraphs a2iv and v, and exempting fully vaccinated workers in certain settings where not all employees are vaccinated from several requirements of the standard paragraph a4, the ETS encourages vaccination for employers and employees who do not want to follow those requirements.
In addition, for vaccines to be effective, workers need first to actually receive them. While the supply of vaccines and their distribution continues to increase, as of the date of the promulgation of this standard, approximately a quarter of healthcare workers have not yet completed COVID19 vaccination with many of those expressing vaccine hesitation King et al., April 24, 2021. Although a majority of Americans over 65 are vaccinated, the percentage among the working-age population is much lower 44% CDC, May 24, 2021a. There are several barriers to vaccination for the working-age population. Many employees who want to be vaccinated may be unable to do so unless the employer authorizes time off work, or may be financially unable to absorb a reduced paycheck for taking unpaid leave to be vaccinated or potentially missing a significantly larger period of time from work and a larger financial hit because of the potential side effects of the vaccination SEIU Healthcare, February 8, 2021. A recent Kaiser Foundation survey of people who expressed reluctance to be vaccinated indicates that 70% of those respondents 76% and 77% among Black and Latinx respondents, respectively were concerned about side effects, and 45%
57% Black and 54% Latinx cited fears that they might miss work if the side effects made them sick KFF, May 6, 2021. Another recent study, which surveyed 500 businesses, found that paid time off for vaccination and recovery was the highest overall motivator for employees to get
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vaccinated 51%, which was even higher than employers offering the vaccine on site 49% Azimi et al., April 9, 2021. Yet a different report indicates that before the pandemic, about 70% of the lowest-wage workers had no access to paid sick leave, meaning that any time off for vaccination or recovery would result in lost wages for those who can least afford those losses Gould, February 28, 2020.
Despite the American Rescue Plan ARP extending tax credits for some employers to allow this sort of sick leave, such leave is not mandated.
Those surveys are consistent with the experience among healthcare workers at Yale University and Yale New Haven Hospital. When workers were surveyed at the time the FDA granted Emergency Use Authorization of the PfizerBioNTech vaccine, the lack of incentives or mitigation of risk e.g., not using sick days or pay loss for side effects was a key reason stated by people who identified themselves as unlikely to get the vaccine. Roy et al., December 29, 2020. Following four months of vaccination efforts, researchers found that although 75%
had been vaccinated, roughly half of low wage, hourly employees, had not yet been vaccinated, and based on their previous research, identified the provision of additional paid sick leave days as a critical barrier for this population of workers Roy and Forman, April 7, 2021. Even when employees can arrange for time off for the first dose, some of the same difficulties may prevent workers from returning during the designated time window for the second dose of two-dose vaccines. The ETS addresses these obstacles with a requirement that employers must authorize paid leave to cover the time for vaccination and for recovery from side effects.
Further, there is a need to continue building vaccine confidence in some parts of the population, making the ETS
even more important to assure safe working conditions during the period before these workers are vaccinated.
Moreover, as discussed in more depth in Grave Danger Section IV.A. of the preamble, even though vaccines are now more readily available, they do not protect all workers. Some workers are unable to be vaccinated for medical or other reasons, even if they are willing to be. And in immunocompromised workers, vaccines can be considerably less effective than in immunocompetent individuals.18 And while some 18 There is concern that vaccines may not be effective for immunocompromised individuals. A

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