We hate that we have to do this again, but alas, as we reported late last week, on Thursday, September 9th, 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.  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 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.

Those of you who participated in either our Cal/OSHA COVID-19 ETS coalition or the coalition we assembled in anticipation of a federal OSHA general industry COVID-19 ETS, know that together we accomplished a great deal relative to both rulemakings.  Indeed, after submitting multiple sets of comments in connection with the Cal/OSHA emergency rulemaking, the Cal/OSH Standards Board invited us to participate as one of a very small group of employer representatives on the agency’s official Advisory Committee for the ETS. Through that work, our input is reflected in the language and substance of the amended Cal/OSHA COVID-19 ETS, as well as in several batches of FAQs issued by Cal/OSHA attempting to address some of the concerns and recommendations we identified. Likewise, our input during multiple listening sessions with Fed OSHA, submission of a comprehensive set of written comments to OSHA and OMB, and our participation in numerous stakeholder meetings with OIRA/OMB no doubt impacted OSHA’s decision to proceed with a COVID-19 ETS that was limited only to the healthcare sector.  And since fed OSHA issued its ETS, we have also been able to advocate for very favorable guidance and interpretations, including OSHA’s agreement that pharmacies and grocery stores that administer the COVID-19 vaccines can easily be exempt from coverage under the ETS.

We intend to follow a similar approach to help ensure a fed OSHA COVID-19 Vaccination or Testing ETS is manageable for employers, and help our coalition members understand and comply with the ETS.  We will be coordinating with our coalition members to:

• Keep everyone informed about developments with the rulemaking;
• Solicit your input about what is feasible, what is not, what may prove most problematic for your operations, and what we need to fight hardest to keep out of the ETS;
• Advocate for your interests through written comments, stakeholder meetings, and any other informal opportunities to engage with decisionmakers at OSHA and OMB;
• Engage with OSHA as necessary post-issuance to steer guidance or further rulemaking in the right direction; and
• Educate coalition members about the ETS through regular email updates and/or calls and webinars.

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.

In the meantime, plan to join attorneys from Conn Maciel Carey LLP’s national COVID-19 Task Force for a webinar on Friday, September 17^th at 1 PM ET reviewing OSHA’s new COVID-19 emergency rulemaking.  The President’s announcement and new Action Plan are lean on details and prompted as many questions as they answered, so our team will talk through our take on the burning questions raised by the latest development on the COVID-19 front:

• What will OSHA’s new COVID-19 emergency rule require?
• Which employers will be covered by the rule?
• Will it be employers or employees who have to pay for weekly testing of unvaccinated workers?
• When will the new ETS be issued?
• What documentation will be required to verify vaccination and testing status?

Additionally, we will be working to secure either a private audience with OSHA for our coalition members or an invitation to a group “listening session” with OSHA to share our concerns and recommendations about a proposed COVID rule.  To make such sessions more meaningful, we need to start organizing our thoughts to present to OSHA soon.  Accordingly, we intend to schedule a brainstorming session with our coalition members (and prospective members) sometime the week of September 27^th.  If your organization has already committed to participate in the coalition or expressed interest, you will get an invite to that meeting.  If we have not already connected, let us know if your organization is considering joining and that you would like an invitation.

Let us know if you have any questions or if you would like to have a call to talk through our plans and strategy for this rulemaking, and the other value-add benefits of participating with our group, including status reports and education sessions.