Public school staff covered by President Biden’s OSHA vaccine or testing mandate: Explaining the numbers

This week in The Hill, I explained how public school teachers will be affected by President Biden’s planned federal safety regulations requiring all employees of organizations with more than 100 workers to be vaccinated or undergo weekly testing. As written, the mandate will apply to half the nation’s teachers and staff in public schools, provided it survives legal challenges. Though not narrowly aimed at schools, the mandate’s effect on public schools is worth particular attention because schools are where the highest concentrations of unvaccinated Americans — children — regularly gather.

As I explained in The Hill, the mandate covers almost exactly half of the teachers and staff in the country. If you account for existing state-level requirements, the OSHA mandate stands to affect only a quarter of the nation’s public school teachers and staff.

In the interest of transparency, I wanted to show the work behind my estimates. The three keys to the calculation are determining which schools fall into the category of “employers with more than 100 employees,” understanding the backwards jurisdiction OSHA has over public schools, and removing states that already have requirements for public school employees that are equal to (or more stringent than) the OSHA mandate.

The vast majority of public school teachers and staff will be included under the 100 employee cap. Most schools may have less than 100 employees, but teachers and staff are employees of school districts, not schools. Nationwide, six in 10 districts have 100 or more employees (based on 2019–20 district staff counts from the National Center for Education Statistics supplemented with California state data from 2018–19). However, those districts are larger by definition, and they employ 95 percent of the nation’s public school teachers and staff.

How many of these employees will OSHA’s mandate cover? Counterintuitively, none in the 24 states where OSHA has direct enforcement authority. Public school teacher and staff are local government employees, and in those 24 states, state and local governments are explicitly excluded from the category of “employers” covered by OSHA regulations. Nearly half of the nations’ public school teachers and staff (47.8 percent) work in these states, and are not covered by the mandate. They would only be subject to mandates those states come up with on their own, and currently, none have such mandates.

What about the remaining states? 26 states and DC are not under OSHA’s direct enforcement authority because they have state occupational safety and health plans that are OSHA-approved. Though they have more control on paper, those state plans must be “at least as effective” as OSHA standards, and they explicitly must include state and local government employees. It may seem backwards, but public school employees in state-plan states who are not under OSHA enforcement are the ones that will be effectively covered by the new OSHA mandate.

Though it applies in 26 states, Biden’s OSHA mandate would only be a change for about half of the teachers and staff in them. Nine states (CA, CT, HI, IL, NJ, NM, NY, OR, and WA) as well as DC already have mandates for vaccines or weekly testing that are at least equal to the promised OSHA requirements. These nine states are disproportionately large, and make up more than half of all teachers and staff that would have been covered by the OSHA mandate via state plans. Interestingly, all nine of these states come from within the 26 that have state plans. None of the 24 states under direct OSHA oversight have their own state vaccine mandates.

The results suggest that the OSHA mandate could make a material difference for only 24.2 percent of the nation’s public school teachers and staff. Forty-eight percent of public school employees come from the 24 states not subject to the OSHA mandate. Of the remaining 52 percent of staff in the 26 state-plan states, just over half — 26.8 percent of the entire country’s public school staff — are in the nine states and DC that already have their own mandates. The remaining 25.4 percent of the country’s public school teachers and staff are in state-plan states that will be affected by the OSHA mandate, and 95 percent of them — 24.2 percent of the country’s public school staff — are in districts with at least 100 employees.

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