Federal OSHA to Issue Another COVID-19 Emergency Temporary Standard Setting a “Soft” Vaccine-Mandate

By Conn Maciel Carey’s COVID-19 Taskforce

Yesterday, September 9th, President Biden issued new Executive Orders requiring federal contractors and healthcare employers to implement “hard” vaccine mandates, and directed federal OSHA to issue a new Emergency Temporary Standard that would require many employers to provide paid time for employees to get vaccinated and recover from the vaccine, and to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly COVID-19 testing.

The push now for a broader COVID-19 ETS applicable beyond just healthcare is a step for which we have been bracing for a while now.  In June, when OSHA issued its COVID-19 ETS that was limited only to the healthcare industry, the vast majority of employers dodged the bullet, but since the explosion of new cases because of the Delta variant, we began to see that bullet more as a boomerang, likely to come back around for the rest of industry.  Here are five signals we picked up that OSHA was likely to revisit its decision in June to limit its COVID-19 ETS to only healthcare employers:

    1. The rate of community transmission and COVID-19 deaths around the country has returned to the level we were experiencing in the Spring of this year when OSHA delivered to OMB a proposed ETS that was written to cover all industries.  To the extent the decline in cases and deaths was a major factor in OSHA’s decision to limit the ETS to just healthcare, that factor no longer cuts in favor of a healthcare-only rule.
    2. Between the time OSHA delivered the broad proposed ETS and the time it issued the narrow healthcare-only ETS, the CDC released groundbreaking guidance relaxing COVID-19 protocols for vaccinated individuals.  OSHA’s decision to limit the ETS to just healthcare only a month later had to be influenced by that seismic shift.  But since that time, in July, CDC backtracked on its guidance for vaccinated workers, causing OSHA to adjust its own guidance in that regard.
    3. Since issuing the ETS for healthcare, OSHA has been under pressure from national unions and worker advocacy groups to expand the ETS to all industries, both in the form of written comments during the ETS’s post-issuance comment period and a lawsuit filed by AFL-CIO challenging OSHA’s decision to limit the ETS to just healthcare.
    4. There has been a growing tension between the Biden Administration and certain Republican governors, particular DeSantis in Florida and Abbott in Texas, around mask and vaccine mandates.  The Biden Administration could resolve that tension by issuing a specific federal OSHA regulation setting requirements for masking and vaccinations, which would likely preempt conflicting state laws.
    5. The White House has changed its tune about strict COVID-19 protocols and vaccine mandates dramatically since the OSHA ETS was issued.  The Administration’s decision to limit the ETS to healthcare only was likely at least partially politically-motivated; i.e., a broad ETS was too unpopular due to the massive decline in COVID-19 cases and deaths.  However, we have started to see President Biden take politically risky moves around vaccinations; e.g., reinstituting mask recommendations for vaccinated individuals and setting a “soft” mandate for federal workers and contractors and encouraging industry to set similar mandates.  If the politics of aggressive COVID-19 requirements influenced OSHA’s decision to issue a narrow rule in June, it appears the Administration has changed its political calculation in the face of the spread of the Delta variant surge.

Those were the main signals we saw that kept us up at night worried OSHA would deliver to OMB a new or amended COVID-19 ETS that would apply to all industries.  But President Biden’s announcements yesterday sent the strongest signal yet that we will soon see further regulatory action from federal OSHA on the COVID-19 front.  A lot of questions remain, and we expect those to be answered in time as the new rules take effect, but we wanted to share with you what we know so far, as well as our preliminary thoughts/speculation about some of those questions.

What Happened Yesterday?

Let’s start with the President’s “Path Out of the Pandemic: POTUS COVID-19 Action Plan.” Continue reading

What Employers Need to Know About COVID-19 Vaccines [Webinar Recording]

On February 11th, Kara M. MacielFern Fleischer-Daves and Lindsay A. DiSalvo presented a webinar regarding What Employers Need to Know About COVID-19 Vaccine.Capture

In December 2020, two COVID-19 vaccines received emergency use authorization from the US government and several more vaccines may be approved in the coming months. In the initial phases, front-line health care workers, nursing home residents, persons over 75 years of age, and others with underlying health conditions were given first priority. Many employers want to have their “essential workers” or all of their workers vaccinated as soon as possible.

During this webinar, Conn Maciel Carey’s OSHA and Labor & Employment attorneys discussed these important questions:

Continue reading

[Webinar] What Employers Need to Know About COVID-19 Vaccines

On Thursday, February 11th from 1:00 PM – 2:15 P.M. EST, join Kara M. Maciel, Fern Fleischer-Daves and Lindsay A. DiSalvo for a webinar regarding What Employers Need to Know About COVID-19 Vaccine.Capture

In December 2020, two COVID-19 vaccines received emergency use authorization from the US government and several more vaccines may be approved in the coming months. In the initial phases, front-line health care workers, nursing home residents, persons over 75 years of age, and others with underlying health conditions were given first priority. Many employers want to have their “essential workers” or all of their workers vaccinated as soon as possible.

During this webinar, Conn Maciel Carey’s OSHA and Labor & Employment attorneys will discuss these important questions:

Continue reading

Important COVID-19 Update: “Close Contact” Redefined to Include 15 Minutes Cumulative

By Conn Maciel Carey’s COVID-19 Task Force

We want to alert you to a significant COVID-19 development out of the CDC yesterday.  Specifically, the CDC just announced a material revision to its definition of “Close Contact.”  The new definition makes it explicit that the 15-minute exposure period (i.e., within 6-feet of an infected individual for 15 minutes) should be assessed based on a cumulative amount of time over 24 hours, not just a single, continuous 15-minute interaction.

Here is the new definition included on the CDC’s website:

Close Contact – Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.

* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.​

CDC’s revised view of what constitutes a Close Contact is based on an exposure study at a correctional facility.  Here is the CDC’s public notice about the correctional facility analysis.  The analysis apparently revealed that virus was spread to a 20-year-old prison employee who interacted with individuals who later tested positive for the virus, after 22 interactions that took place over 17 minutes during an eight-hour shift.  

An important consequence of this revision is the impact it will have on employers’ ability to maintain staffing because it establishes a much lower threshold trigger for required quarantine. Continue reading