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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
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employees may simply elect not to be vaccinated for personal reasons, OSHA
has a statutory duty to ensure that employers protect those employees from the grave danger of COVID19
regardless of their basis for refusing vaccination.
These factors, along with the uneven vaccination rates among some subpopulations, make the need for this ETS
especially acute. For example, the Latinx and Black populations who have been disproportionately harmed by the virus also have the lowest vaccination rates Ndugga et al., February 18, 2021;
CDC, May 24, 2021a. This ETS can help facilitate vaccination among those groups, protect those who cannot or will not be vaccinated, and thereby mitigate the disproportionate impacts of the virus for workers in these groups.
Even when the ETS helps currently unvaccinated workers overcome the obstacles to becoming vaccinated, they must still be protected by the other measures of this standard until they are fully protected by the vaccine. With the two-dose vaccines in particular, the time from a first shot to fully effective vaccination is 5 to 6 weeks.
Furthermore, also increasing are new virus variants, the most prevalent of which, the B.1.1.7 variant first identified in the U.K., now appears responsible for almost 66% of the cases in the U.S CDC, May 24, 2021b. While the currently authorized vaccines appear effective against all of the variants now circulating, promoting vaccination as quickly as possible becomes even more critical because the variant is not only more transmissible, it also appears to cause more severe disease.
Finally, while the science continues to develop, the full extent and duration of the immune response remains study evaluating 67 individuals with blood cancers found that 46% of them did not generate an immune response despite being fully vaccinated Agha et al., April 7, 2021. Almost three quarters of those with chronic lymphocytic leukemia were non-responsive. A study on 658 transplant recipients found that 46% of recipients did not develop an immune response, including 18% of those not on an immunosuppression regimen and 33% of those who received their transplant more than 12 years prior Boyarsky et al., May 5, 2021.
A study on those with chronic inflammatory disease found a three-fold reduction in immune response generated by vaccination in comparison to immunocompetent adults, including a 36 fold reduction for those receiving B cell depletion therapies Deepak et al., April 9, 2021.
Furthermore, the Australian Agency for Clinical Innovation issued a summary detailing significant concerns about the efficacy for vaccination for immunocompromised persons and need for these individuals to continue using non-pharmaceutical interventions ACI, April 28, 2021. While vaccines are a highly effective tool to minimize infections, it cannot be overlooked that it is likely not an effective means of control for all individuals.

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unknown. Additional evidence is also needed to determine the extent to which people who are vaccinated could still be infected and transmit the disease to others, even if they themselves are protected from the worst health effects.
Although such cases do not appear to be common, the ETS would help protect these employees and their co-workers in mixed groups of vaccinated and unvaccinated people.
These issues, as elaborated further in the discussion of Grave Danger, demonstrate that the various protections required in this ETS are still necessary, even for workplaces in which many but not all members of the workforce have been vaccinated.
This pandemic has taken a devastating toll on all of American society, and addressing it requires a whole-of-government response White House, April 2, 2021. This ETS is part of that response. OSHA shares the nations hope for the promise of recovery created by the vaccines. But in the meantime, it also recognizes that measures to mitigate the spread of COVID19, including encouraging and facilitating vaccination, are still necessary in the settings covered by this standard. However, although OSHA
finds it necessary to continue these mitigation measures for the immediate future, the agency will adjust as conditions change. As more of the workforce becomes vaccinated and the post-vaccination evidence base continues to grow, and the CDC updates its guidance, OSHA will withdraw or modify the ETS to the extent the workplace hazard is substantially diminished in the settings covered by this ETS. However, at this point in time, the available evidence indicates that the ETS is still necessary to protect employees in the settings covered by this ETS, and the potential for higher immunity rates later on does not obviate the need to implement the ETS now.
References Agency for Clinical Innovation ACI. 2021, 28 April. Evidence check:
Immunocompromised patients and COVID19 vaccines. https
aci.health.nsw.gov.au/__data/assets/pdf_
file/0009/645750/Evidence-checkImmunocompromised-patients-COVID19-vaccines.pdf. ACI, 28 April, 2021.
Agha et al., 2021, April 7. Suboptimal response to COVID19 mRNA vaccines in hematologic malignancies patients.
medRxiv 2021.04.06.21254949. https
doi.org/10.1101/2021.04.06.21254949.
Agha et al., April 7, 2021.
American Federation of Labor and Congress of Industrial Organizations, USCA Case 201158, Document 1846700. 2020, June 11. AFLCIO, June 11, 2020.

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American Federation of Labor and Congress of Industrial Organizations. Denial of Petition for Rehearing En Banc on Behalf Of American Federation of Labor and Congress of Industrial Organizations.
USCA Case 201158, Document 1853761. 2020, July 28. AFLCIO, July 28, 2020.
Azimi, T et al., 2021, April 9.Getting to work: Employers role in COVID19
vaccination. https www.mckinsey.com/
industries/pharmaceuticals-andmedical-products/our-insights/getting-towork-employers-role-in-covid-19vaccination. Azimi, April 9, 2021.
Belanger, J and Leander, P. 2020, December 9. What Motivates COVID Rule Breakers? Scientific American. https
www.scientificamerican.com/article/
what-motivates-covid-rule-breakers/.
Belanger and Leander, December 9, 2020.
Boyarsky, BJ et al., 2021, May 5. Antibody Response to 2-Dose SARSCoV2 mRNA
Vaccine Series in Solid Organ Transplant Recipients. JAMA. 2021 May 5. doi:
10.1001/jama.2021.7489. PMID:
33950155. Boyarsky et al., May 5, 2021.
Budryk, Z. 2020, November 17. Fauci calls for a uniform approach to coronavirus pandemic. The Hill. https thehill.com/
policy/healthcare/526378-fauci-calls-fora-uniform-approach-to-the-coronaviruspandemic?rl=1. Budryk, November 17, 2020.
Centers for Disease Control and Prevention CDC. 2020, May 28. United States Coronavirus COVID19 Death Toll Surpasses 100,000. https www.cdc.gov/
media/releases/2020/s0528-coronavirusdeath-toll.html. CDC, May 28, 2020.
Centers for Disease Control and Prevention CDC. 2021, March 8. How to Protect Yourself & Others. https www.cdc.gov/
coronavirus/2019-ncov/prevent-gettingsick/prevention.html. CDC, March 8, 2021.
Centers for Disease Control and Prevention CDC. 2021a, May 24. Demographic Trends of People Receiving COVID19
Vaccinations in the United States.
https covid.cdc.gov/covid-data-tracker/
vaccination-demographics-trends.
CDC, May 24, 2021a.
Centers for Disease Control and Prevention CDC. 2021b, May 24. Variant Proportions. https covid.cdc.gov/coviddata-tracker/variant-proportions. CDC, May 24, 2021b.
Deepak, et al., 2021, April 7.
Glucocorticoids and B Cell Depleting Agents Substantially Impair Immunogenicity of mRNA Vaccines to SARSCoV2. medRxiv 2021.04.05.21254656. https doi.org/
10.1101/2021.04.05.21254656. Deepak et al., April 7, 2021.
Fendt, L. 2020, September 30. The JBS
Coronavirus Outbreak is Officially Resolved, but Workers Families Are Still Fighting For Compensation. CPR News.
https www.cpr.org/2020/09/30/
colorado-coronavirus-jbs-outbreakresolved-workers-families-wantcompensation/. Fendt, September 30, 2020.

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