By Conn Maciel Carey’s COVID-19 Taskforce

Last Thursday, September 9^th, President Biden announced that he is directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated and to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates.

While we anticipated OSHA would reconsider the need for a broader COVID-19 ETS applicable beyond just the healthcare sector in light of the impact of the Delta variant, President Biden’s decision to use a new ETS focused on vaccinations and testing as a central element of his newly unveiled Path Out of the Pandemic – COVID-19 Action Plan raises a host of challenges for employers across the country.  To help our clients and friends in industry prepare for and navigate this emergency rulemaking, we have prepared an extensive list of Q&As about OSHA’s Emergency Rulemaking for a COVID-19 Vaccine-Mandate ETS.  Also, here are links to an article we prepared summarizing OSHA’s new emergency rulemaking, a recording of the webinar about the ETS we conducted last week, and the slides we used.

We understand from our contacts at OSHA that the agency will move much more quickly to prepare and send this ETS to the White House, so it is imperative that the employer community come together now to identify shared concerns and considerations and begin advocating to OSHA and OMB so that this new ETS is one with which industry can reasonably manage.  To that end, Conn Maciel Carey LLP is organizing a coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible.

For several reasons, we believe this emergency rulemaking may be the OSHA rulemaking that has the most opportunity for industry influence that we can recall.  First, the career staff at OSHA did not know the President’s announcement was coming, so there was no foundational work on a draft rule before last week.  Being at such an early stage of drafting means they are less dug in on any particular terms, and there is genuine opportunity to have our concerns, considerations, and recommendations heard.  Second, a big reason the Administration is issuing this ETS is to give cover to employers who have wanted to set vaccine mandates, but were reluctant to do it unless or until other similarly situated employers did the same; i.e., we have all been worried about losing our workers to neighboring businesses that had more relaxed COVID-19 policies.  Since the rulemaking is, in large part, a response to Industry’s request to the Administration to provide this cover, we think the White House will be open to specific input from Industry about how best to implement it.  Finally, unlike the Executive Orders for federal employees and contractors and an expanded scope of healthcare workers, which included a fair amount of detail about how they would be implemented, the President’s announcement and new Action Plan about the OSHA ETS for private industry are essentially bare bones.  There is almost no detail about what/how the ETS will operate.  It does not specify any of the following factors, that we intend to address through our coalition:

• • 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 testing program (employers or employees)?
  • If employers have to pay for testing, is it just for the test kits, or also employees’ time 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 rule intersect with the ADA/Title VII requests for medical and religious exemptions?

To that end, Conn Maciel Carey LLP is organizing a fee-based company-anonymous coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible.

If you are interested in participating, please contact our OSHA Practice Chair, Eric J. Conn, and let us know soon.  We want to ensure as much time as possible to hear your input and get your feedback about written comments and talking points we will develop.  With OSHA presumably feeling pressure to move quickly to draft and publish an ETS as part of the Administration’s efforts to increase the number of fully vaccinated Americans, we intend to form our coalition by no-later-than late September, and to try to first get in front of OSHA before the end of October.