On Sept. 17, 2021, attorneys from Conn Maciel Carey LLP’s COVID-19 Task Force presented a webinar reviewing OSHA’s new COVID-19 emergency rulemaking focused on vaccine and testing mandates for many US employers.

On Sept. 9th, President Biden revealed a new COVID-19 Action Plan with one of several key goals to “Vaccinate the Unvaccinated.” The most notable aspect of that plan is a directive to federal OSHA to develop a 2nd COVID-19 Emergency Temporary Standard requiring all but small employers in all industries to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time for employees to get vaccinated and recover from ill effects of the vaccine. Separately, the President issued Executive Orders setting “hard” vaccine mandates for federal contractors and healthcare workers.

The President’s announcement was lean on details, and prompted as many questions as it answered. The attorneys from CMC’s OSHA and Employment Law practices discussed our take on the burning questions raised by this latest development on the COVID-19 front:

• How do employers count the 100 worker threshold (by establishment or company-wide, how do you count temp, part-time, and seasonal workers, does it count remote/telework staff, etc.)?
• Who pays for the weekly testing program (employers or employees), and it is employers, does it include just the expense of the test kits, or also employees’ time spent getting tested?
• Under a work-required vaccine program, will days away for adverse affects of the vaccine have to be recorded on employers’ 300 Logs?
• If the FDA approves booster shots for the general population, will a booster shot be required to consider an employee fully vaccinated?
• Does the rule account in any way for natural antibody immunity for employees who have been infected and recovered from COVID-19?
• Assuming employers have to pay for time to get vaccinated and recover from ill effects of the vaccine, is there a limit to how much time?
• What type of test will be acceptable for the testing program?
• What documentation will be required to verify vaccination and testing status, and will employers have to keep those records, as employee medical records, for the life of employment + 30 years?
• Will there be time for the ETS to go into effect, or will testing be required for employees who are willing to get vaccinated until they can get vaccinated?
• Will there be conditions that could result in the ETS being shelved?
• If we achieve a 100% fully vaccinated workforce, can we dispense with all of the other COVID-19 protocols (i.e., distancing, masks, pre-work screening, etc.)?
• How will the new OSHA ETS intersect with the ADA/Title VII requests for medical and religious exemptions?

We are pleased to share this link to a copy of the slides. If you missed the live webinar, click here to subscribe to our YouTube channel and access the recording.  We have also collected all of the participants’ questions from the webinar and composed a written Q&A document with our answers and useful links throughout.  These will also be incorporated into our full compendium of COVID-19 resources on Conn Maciel Carey’s COVID-19 Task Force Page.

This was the 10th webinar event in Conn Maciel Carey’s 2021 Labor and Employment Webinar Series.  Click here to view our full schedule, detailed program descriptions, and individual registration pages for all of the webinars in the 2021 Labor and Employment Webinar Series.  To register for all of Conn Maciel Carey’s Labor and Employment webinars, click here to send us an email request, and we will register you. If you missed any of our past webinars in our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel and view our webinar archive.