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Private employers — including in Am Samoa with 100+ employees must adopt mandatory vax policy

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Supreme Court deliberates legality of OSHA's authority

Pago Pago, AMERICAN SAMOA — The U.S. Department of Labor (USDOL) has confirmed that the new Vaccination and Testing Emergency Temporary Standard (EST) rule on COVID-19 also applies to employers in American Samoa with at least 100 workers. And the rule is proceeding forward, following a ruling by a federal appeals’ court. In the meantime, the Supreme Court is taking up the question.

Beginning Monday, unvaccinated employees in big companies are supposed to wear masks at work, unless the court blocks enforcement. But testing requirements and potential fines for employers don’t kick in until February.

Legal challenges to the policies from Republican-led states and business groups are in their early stages, but the outcome at the high court probably will determine the fate of vaccine requirements affecting more than 80 million people.


The U.S Occupational Safety and Health Administration (OSHA), the regulatory arm of USDOL, announced on Nov. 5 a new rule, which states in part that employers with at least 100 employees will be required to adopt a mandatory vaccination policy unless they adopt a policy requiring unvaccinated workers to undergo weekly testing and wearing a face covering at work.

“Covered employers must provide paid time for workers to get the COVID-19 vaccine and ensure workers have paid sick leave to recover from any side effects that prevent them from working,” according to the rule, for which employers were given a timeline to comply.

Responding to Samoa News inquiries, USDOL regional spokesman, Jose Carnevali, who is based in California, confirmed this past Thursday that the vaccination and testing ETS “applies to employers in American Samoa”.

He noted that “American Samoa is under federal OSHA jurisdiction, which covers most private sector workers.”

The rule was put on hold last November after it was challenged in federal court by employers in the U.S. On Nov. 12, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 rule.

Late last week, OSHA issued a “litigation update” on the case, which is now lifted, saying that OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit “dissolved” the Fifth Circuit court’s stay of the Vaccination and testing ETS. And that OSHA “can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace,” according to statement.

“To account for any uncertainty created by the stay”, OSHA said it “is exercising enforcement discretion with respect to the compliance dates” of the rule.

To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

OSHA said it would work closely with the regulated community to provide compliance assistance.

In American Samoa, the territory’s largest private employer, StarKist Samoa has already made it mandatory — beginning last month — for employees to be fully vaccinated and there are exemptions. Those with exemptions from doctors like those breastfeeding or other medical reasons are  exempted from the mandate.

Samoa News understands that there are other large local companies that have also required employees to be fully vaccinated.

For the American Samoa Government, employees of the Executive Branch have been given until Jan. 14 this year to comply with the fully vaccinated mandate issued by the governor. However, the mandate does not apply to semi-autonomous agencies of ASG, that are governed by boards.


Written comments on any aspect of the OSHA rule must now be submitted by Jan. 19 to in Docket number OSHA-2021-0007, which is the only way that OSHA is receiving comments. Details of the rule are also available in this docket and also on OHSA link [].


Fully vaccinated and mostly masked, the Supreme Court’s conservative majority appeared skeptical Friday of the Biden administration’s authority to impose a vaccine-or-testing requirement on the nation’s large employers. The court seemed more open to a separate vaccine mandate for most health care workers.

The arguments in the two cases come at a time of spiking coronavirus cases because of the omicron variant, and the decision Friday by seven justices to wear masks for the first time while hearing arguments reflected the new phase of the pandemic.