By Conn Maciel Carey’s COVID-19 Task Force

On September 9^th, President Biden announced that he was 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 more importantly, to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing.  This new ETS focused on vaccinations and testing is a central element of the President’s newly unveiled Path Out of the Pandemic – COVID-19 Action Plan, with a central tenet to “vaccinate the unvaccinated.”

We heard from our contacts at OSHA that the agency would move much more quickly to prepare and send this ETS to the White House than it had done with the first COVID-19 ETS this Spring and Summer, and they have done just that.  On Tuesday, October 12, 2021, the Department of Labor issued a statement confirming that OSHA delivered to the White House’s Office of Management and Budget what the statement characterized as the “initial text” of the ETS.  Here is the relevant except from the DOL statement:

“The Occupational Safety and Health Administration has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees to ensure their workers are fully vaccinated or undergo weekly testing to protect employees from the spread of coronavirus in the workplace.  On Tuesday, October 12, as part of the regulatory review process, the agency submitted the initial text of the emergency temporary standard to the Office of Management and Budget.”

We thought the reference to “initial text” was peculiar.  Generally, it is a proposed final regulation that OSHA delivers to OMB in the context of an emergency rulemaking, not a working draft. But, the very next day, on Wednesday, October 13, 2021, after hitting the “refresh” button more times through the night than we would like to admit, we saw what we were expecting – a proposed final version of Federal OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) has been submitted to the White House’s Office of Management and Budget (“OMB”) for approval:

The entry for the ETS on OMB’s website confirms that OMB:

• Has received a proposed COVID-19 vaccination and testing rule from OSHA;
• The rule is in the “Final Rule” stage;
• The rule is characterized as “Economically Significant”; and
• Regulatory text is not available to be reviewed by the public.

Status of the Emergency Rulemaking

Proposed regulations go to OMB for a meaningful review by the Administration’s economists and policy experts.  One element of that review process is that OMB’s Office of Information and Regulatory Affairs (OIRA) takes stakeholder input in some form, pursuant to Executive Order 12866.  Most often, that input is in the form of stakeholder meetings with representatives from OMB and from the agency promulgating the rule – OSHA for our purposes.  Likewise, stakeholders may submit any form of written advocacy, exhibits, data, etc. in connection with their EO 12866 meetings.  During the first COVID-19 emergency rulemaking, OIRA took more than 50 stakeholder meetings over eight weeks, and the end result was a final rule that was dramatically different than what OSHA had initially delivered to OMB.  This time around, the process will likely be much shorter.

For the vaccination/testing emergency rule, many stakeholder meetings are being scheduled for tomorrow (Friday) morning, which had us thinking the Administration may try to cram in a dozen or so meetings tomorrow and then issue the final rule at the close of business.  But then we become aware of several other meetings scheduled for Monday and Tuesday, October 18^th and 19^th, so it does not appear we will see a final rule issued until the middle of next week, at the earliest.

Although OMB technically has 90 days to review and approve the rule, or to return it to OSHA for more work, given that this is an emergency rulemaking, and the Administration’s urgency to get this done is now obvious, we do not expect OMB will take anything close to 90 days, or eight weeks like the ETS this summer.  Indeed, given how quickly this rule is moving, we expect the review process to be done next week, and certainly no later than the end of October.

Advocacy by the Employers COVID-19 Prevention Coalition

On behalf of the Employers COVID-19 Prevention Coalition, a coalition of employers and trade groups organized by Conn Maciel Carey LLP, we have secured an audience with OIRA to provide stakeholder input and recommendations to OSHA and OMB about the proposed vaccine/testing ETS.  The Employers COVID-19 Prevention Coalition has been working hard to make sure industry’s voice is heard in this emergency rulemaking process (including during the original emergency rulemaking which resulted in the healthcare ETS).

Today, we submitted a comprehensive set of written comments to OSHA, the Secretary of Labor, and OMB.  We have not seen regulatory text yet, so the comments were essentially recommendations about provisions that we anticipate OSHA is considering for the ETS.  Specifically, we detailed recommendations for how most effectively to  address twelve issues likely to be incorporated in some form in the ETS, including:

1. Phasing-in implementation dates for the various ETS requirements, with the paid time benefit for getting vaccinated becoming effective in relatively short order, but the “soft” vaccine-mandate elements of the standard (i.e., requiring vaccination or a recent negative test result to report to work) not becoming effective for at least seventy-five days after publication of the ETS in the Federal Register.
2. Clarifying that the ETS does not prohibit employers’ from voluntarily implementing “hard” vaccine mandate policies.
3. NOT requiring employers to pay for employee-time associated with testing or the hard costs of testing for employees who are subject to a weekly testing requirement because of their own voluntary choice to forego vaccination.
4. Capping paid time off (PTO) required for employee-time getting vaccinated at four hours per dose (but eliminating PTO for employers who host an onsite vaccine event during work hours), and capping PTO for time recovering from any ill effects of the vaccines at four hours for the first dose and eight hours for a second.
5. Defining “fully vaccinated” by memorializing (as opposed to cross-referencing) the current CDC definition of that term, which excludes booster shots for any segment of the workforce and includes certain vaccines not yet approved by the US FDA.
6. Calculating the 100-employee threshold for ETS coverage based on the peak number of employees in CY 2020, including part-time, seasonal, remote, and supervised temporary workers, but not applying the “soft” vaccine-mandate aspects of the rule to employees working remotely.
7. Providing flexibility to employers in how they document employee vaccination-status and test results, and excluding those records from the preservation requirements of 29 C.F.R. Section 1910.1020 (or setting a brief alternative preservation requirement).
8. Addressing the virtually inevitable shortage of COVID-19 testing materials and unavoidable delays in obtaining test results that will occur upon implementation of the ETS by allowing unvaccinated employees who opt for testing to report to work during periods of demonstrable test shortages or delays, subject to enhanced safety protocols.
9. Memorializing in the ETS that adverse reactions to vaccination are exempt from OSHA injury and illness recordkeeping no matter the employers’ vaccination policies, and that confirmed, work-related COVID-19 cases are only recordable if the case involves an unvaccinated worker.
10. Incorporating clear language expressing OSHA’s intention that the ETS preempts any state laws that conflict with the ETS or that frustrate its purpose to increase rates of employee vaccinations.
11. Providing a narrow qualified carveout for truck drivers and other key jobs vital to maintaining the stability of the US food supply chain.
12. Limiting the scope of the ETS to focus only on vaccination and testing (and not delve into programmatic requirements like the earlier COVID-19 ETS for healthcare).

Regardless of what happens pre-rule, we also offered to OSHA a recommendation in our written comments — that OSHA at least consider opening a rulemaking docket for post-rule comments, with the potential for amendments to the ETS based on stakeholder feedback then.  That is similar to the approach Cal/OSHA has followed with its COVID-19 ETS – enact a rule to meet the urgency, but then take some time to fix problematic elements of the Rule while it is in effect and enforceable.  If that happens with the Fed OSHA Rule, stakeholders will get at least one bite at the apple after seeing actual regulatory text.

To help our clients and friends in industry prepare for and navigate this emergency rulemaking, we 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.