Update on Fed OSHA’s COVID-19 Vaccination and Testing Emergency Rulemaking

By Conn Maciel Carey LLP’s COVID-19 Task Force

Although it has only been 10 days since OSHA delivered a proposed COVID-19 Vaccination and Testing emergency temporary standard (ETS) to the White House’s Office of Management and Budget (OMB), a lot has happened.  We have seen bizarre attempts by groups of individuals to try to muck up the OMB review process.  The US Department of Labor sent letters to certain states informing them that federal OSHA is considering revoking their approved status to operate their State OSH Plans.  And, President Biden’s nominee to Head OSHA, Doug Parker, is scheduled to be confirmed early next week.  Here is a summary of what we’ve been seeing and where we are now.

When Will the Vaccination and Testing ETS be Issued? 

The stakeholder input process at OMB’s Office of Information and Regulatory Affairs (OIRA) is well underway.  OMB’s website reflecting the schedule of Executive Order 12866 meetings is normally only updated once per day, making it hard to nail down when OMB intends to conclude its review of the proposed ETS.  As of the end of last week, we heard that OMB might conclude its review process as early as last Friday, October 12th, but every day, OMB’s website updated to include more and more stakeholder meetings.  As of this morning (Friday, October 22nd), the OMB website updated again, and it did add some new scheduled OIRA EO 12866 stakeholder meetings (now up to 68 meetings), but all of the new meetings have been scheduled to be completed today by 3 PM.

It is beginning to look to us like OMB will have “completed” its review of the ETS by the end of the day today, so at this point, we think OSHA could release the pre-publication package revealing the regulatory text and the preamble of the final ETS, as early as the close of business today.

We have also been hearing from those close to the Administration, like the former #1 and #2 at OSHA during the Obama Administration – David Michaels and Jordan Barab – in interviews and on social media that we will see the rule “in the next couple of weeks.”  Similarly, Deputy Secretary of Labor Julie Su said in an interview last weekend that the ETS was expected to be finalized in the next few weeks.

The two most frequent guesses in our office pool for when we will see the final ETS are this afternoon or next Friday afternoon.

The number of stakeholder meetings — 68 — is the most we are aware of ever for an OSHA rule.  One reason for that is a really bizarre development involving an effort by groups of citizens to try to muck up the stakeholder review process.  Here is a clip from one interesting message board where individuals tried to organize to flood OMB with EO 12866 meeting requests under a mistaken belief that all requests have to be accommodated, and so tons of requests could block the Administration from finalizing the ETS for years:

As we know first hand from the prior COVID-19 emergency rulemaking, OMB may cancel already-scheduled stakeholder meetings whenever it decides it is done with the review process.  So the ”plan” will not succeed in delaying the ETS, but it did impact the quality of the meetings with the agencies because, to accommodate all of the many requests OMB received, OIRA triple-tracked the meetings on Friday and Monday – three meetings schedule at the exact same time.  That limited the number of agency representative in each meeting, and forced some lower level agency staff into many of the meetings.

What is Going On at the State Level?

In other news, and continuing the trend of bizarre twists with this rulemaking, in the run up to this ETS, we have seen:

  1. Texas Governor Abbott issue an executive order purporting to stymie federal efforts to mandate employee vaccinations;
  2. A couple dozen state attorneys general have forecast their intention to bring legal challenges to President Biden’s federal contractor and healthcare hard vaccine mandates and the OSHA ETS soft vaccine mandate; and
  3. South Carolina OSHA and the South Carolina Governor have reportedly threatened to not only refuse to adopt a substantially similar vaccination and testing emergency rule, but to issue its own ETS that is somehow antithetical to the federal rule that we will see in a few days.

In response, the Administration and federal OSHA have begun to flex their muscles back at the states.  For example, the Safer Federal Workforce taskforce issued this FAQ:

Q: Does [the new contract clause for a hard vaccine mandate] apply in States or localities that seek to prohibit compliance with any of the workplace safety protocols set forth in the Task Force Guidance for Federal Contractors and Subcontractors?

A: Yes. These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance. Additionally, nothing in the Task Force Guidance shall excuse noncompliance with any applicable State law or municipal ordinance establishing more protective workplace safety protocols than those established under the Task Force Guidance.

And in an even bolder move, the US Department of Labor sent letters this week to South Carolina, Arizona, and Utah informing the states that federal OSHA was considering revoking their approved status to operate their State OSH Plans (i.e., to rescind their jurisdiction to regulate and enforce workplace safety in their states) because they have not yet adopted the prior COVID-19 ETS for healthcare that federal OSHA issued in June.  The OSH Act requires that whenever federal OSHA adopts an emergency standard, the State Plans are required to promptly adopt their own ETSs that are at least as effective as the federal rule.  Of the twenty-two states that run their own State OSH Plans that cover the private-sector, only South Carolina, Arizona, and Utah have not yet adopted any portion of the healthcare ETS.  The Acting Head of OSHA, Jim Frederick said:

“The longer these states refuse to adopt an emergency temporary standard for healthcare workers, the longer they’re needlessly putting thousands of workers at risk of the spread of the coronavirus.”

These moves by the Administration are no doubt intended to send a strong signal to the states in anticipation of the fights that are expected when the vaccination and testing ETS is issued.

Who will make the final decisions about the ETS?

In other relevant news, President Biden’s nominee to Head OSHA, Doug Parker, will be confirmed early next week.  Here’s an article we wrote about Mr. Parker when he was nominated by President Biden back in April.  Two highlights about Mr. Parker’s background.  First, consistent with President Biden’s campaign promise to build the most pro-union Department of Labor ever, Mr. Parker spent most of his career as a lawyer for major national unions.  Second, he is currently the Head of Cal/OSHA, and in that role, oversaw the Cal/OSHA’s development and implementation of Cal/OSHA’s COVID-19 emergency temporary standard.

Mr. Parker was nominated by President Biden back on April 9th, had his Senate HELP committee confirmation hearing on May 27th, and was approved out of the HELP Committee on a near-party line vote on June 16th.  After waiting for a vote by the full Senate for more than 4 months now, earlier this week, Senate Majority Leader Schumer filed a cloture motion to limit debate on the nomination, it advanced, and the vote is now schedule for Monday, October 25th.

Although we expect Mr. Parker has been quietly involved in the background working on OSHA’s vaccination and testing emergency rulemaking, his soon-to-be official role as the Head of OSHA has the potential to impact what the final rule looks like.  Even as all the metrics around the pandemic were looking very positive during his confirmation hearing in late May, when he was pressed about the need for a broad, all-industry, programmatic ETS, Mr. Parker said the conditions still justified a programmatic rule for all workplaces.  Indeed, Mr. Parker said that he believed OSHA needed to “finish the fight.”  With the Delta surge beginning a short time later, Mr. Parker no doubt feels vindicated, and no doubt feels that OSHA made a terrible mistake when it issued the narrower healthcare-only rule in June.  Accordingly, the more time before the ETS issues, the more opportunity for Doug Parker to push for some of the provisions he favors in this ETS.  For example, it is hard to imagine Cal/OSHA Head, union lawyer, worker advocate Doug Parker answering the big question about whether employers or employees should pay for the testing required by the ETS, including time spent getting tested, in favor of having employees pay.  Cal/OSHA has had broad testing requirements in its Cal/OSHA COVID-19 ETS for a year now, and all of that testing was required to be provided during paid time.

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 met with OIRA on Monday, October 18th to provide industry input and recommendations to OSHA and OMB about the proposed vaccine/testing ETS.  Although the meetings are short (only 30 minutes), we got through our top five priority issues:

  1. The ETS must have a phased-in implementation with the soft vaccine mandate provisions not kicking in until January of 2022 at the earliest.
  2. Employers should not be required to pay for time getting tested or the hard costs of testing.
  3. The ETS should include flexibility for how employers are required to document vaccine-verification status and test results (including self-attestation).
  4. Any documentation collected to comply with this rule should be exempt from the decades-long record preservation requirements for other employee medical records.
  5. The rule needs to account for shortages of testing supplies and unavoidable delays in test results (i.e., suspend the soft vaccine mandate requirement during periods of demonstrable shortages and delays in testing capacity).

We then had some really helpful contributions to the discussion from our coalition participants, who addressed the need for:

  1. consistency across the states (preemption of conflicting state laws and pushing the state OSH Plans to issue identical rules);
  2. flexibility by employers to continue implementing existing vaccination policies (e.g., a voluntary hard vaccine-mandates); and
  3. a qualified exemption for industries like truck drivers, warehouse operators, food manufacturers, and others critical to the nations critical infrastructure supply chain.

The Employers COVID-19 Prevention Coalition also 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.

27 thoughts on “Update on Fed OSHA’s COVID-19 Vaccination and Testing Emergency Rulemaking

  1. I see a lot of people walking away from their jobs over this. Everyone has choices when it comes to their bodies. But somehow, people in “leadership” think it’s their right to infringe on people’s free choice.

    This is a disgrace; the rest of the world is laughing and mocking America because of our over-reaction to COVID

      • We will never know because OSHA is not going to mandate that anyone get vaccinated. As I said, despite all the media headlines and scare tactics on social media, OSHA is not issuing a regulation that requires vaccination. OSHA’s ETS will require weekly testing, but employees can opt out of the weekly testing if they would like to voluntarily get vaccinated and voluntarily share their vaccination status with their employers.

      • Oh, ok, then. I’ll ignore my employer’s vaccine mandate, empowered by Xiden and OSHA… and if I point out to them what you just wrote, they’ll laugh at me and tell me I’m fired.

        I work for county govt. and I’m facing a current deadline now. I won’t be vaxed no matter what, so can OSHA provide a carve out for us normal people who want to be left alone?

      • By no stretch of the imagination am I suggesting that private employers cannot mandate vaccinations. They can and they should. I’m glad to see that your employer is. I’m just telling you that any attribution of that mandate to OSHA is misplaced. OSHA is NOT requiring your employer to do it, and OSHA would not have any authority to prohibit your employer from doing it either.

        And that is even more true since your employer is a county government. Obviously, the President of the United States and federal OSHA have no influence over a county government’s employment policies.

  2. I’m trying to understand how a government agency can pave the way so company’s can mandate vaccinations , and make it very hard for people who are willing to work ( yes they are out there) but don’t need and/ or want a vaccination to do this without feeling violated.
    A mandate on weekly testing feels like a push and a step towards mandatory vaccinations while data clearly indicates that these vaccinations don’t prevent getting the virus or prevent people from being able to carry it to someone else.(( that really defeats the purpose of a vaccination).

    I also don’t understand why vaccination are so high on the healthcare list , compared to the people who actually had covid , and build up natural immunity to this virus, that seems to be totally ignored as they are still being pushed to get this vaccine.
    lastly medical choices and records should be private, this feels like it will open the doors to cause a large front of exclusion and discrimination that should be avoided in the workplace and really anywhere else.

    • I don’t see the link between weekly testing and “a push and a step towards mandatory vaccinations.” I could see a lot of employees volunteering to get vaccinated so they don’t need to keep getting tested, but the OSHA rule will not now or ever require any worker to get vaccinated. It’s a testing requirement with a carve out for employees who voluntarily get vaccinated and voluntarily share their vaccine status with their employers.

      Second, I really have to question your conclusion that the purpose of vaccination is defeated by the fact that the vaccines do not create a 100% perfect force field against infection. No vaccines are 100% effective, but the COVID-19 vaccines are extremely effective. The likelihood of becoming infected is much lower among vaccinated workers, and the likelihood of requiring hospitalization or dying from COVID-19 is orders or magnitude greater for unvaccinated workers. The data is actually mind blowing how effective the vaccines are. The amount of misinformation about it is also mind blowing.

      Finally, it’s a personal choice up to the point that it harms others. It’s like your right to punch your fist ends at the tip of my nose. You can do what you want, but if it could cause my death, you have to take some responsibility for that, especially in a shared workplace. And that is where the personal choice really comes in. If you’re not willing to take a step that protects your co-workers, and your employer sets that as a a condition of employment, it’s your choice to go work somewhere else.

      • Just to make sure readers don’t take this out of context or generalize it with other vaccine types…. my comment below is on Covid19 vaccinations only.

        Your fist punch analogy doesn’t apply for Covid19 vaccinations.
        Because, you stated these covid19 vaccines are extremely effective and protects the vaccinated person. So techinically a vaccinated person should NOT be scared of the unvaccinated person, in fact according to your definition it should be the other way around.

        Covid19 vaccine mandate(call it soft or hard) or to have regular testings(forever? ) to be employed by companies doesn’t make any sense. Also, doesn’t makes sense why it only applies to companies with 100+ employees only.

        Anyways, If it has to be mandated then the first thing that they need to address is the most frequently asked question that no one dares to answer—-“”””who will be accountable or liable for covid19 vaccine adverse reactions or deaths?””””
        Until this is answered thoroughly and clearly, one cannot expect others to get covid19 vaccinated or advocate to get this vaccine. PERIOD.

      • I don’t understand this rationale about employers not having to concern themselves about the health of unvaccinated workers. That’s not how OSHA works. Just because someone wants to make a voluntary, personal choice to do something unsafe, doesn’t excuse the employer from its regulatory duty to protect employees. Employees may choose not to wear a hard hat on a construction site. That won’t harm anyone but the individual who has chosen not to protect himself. But that doesn’t excuse the employer who observes the employee not wearing a hard hat. The employer has to force the employee to wear the hard hat or remove him from the workplace.

        And in any event, that’s not a great analogy because not getting vaccinated can harm others. It can harm your other unvaccinated workers. It can harm your vaccinated but still high-risk workers. It can harm your customers and contractors. Etc.

        Employers have a duty to protect workers (or remove workers), even if the employees choose not to protect themselves.

        And in any event, OSHA’s rule will not require any employee to get vaccinated who does not want to get vaccinated. OSHA’s rule will not require any employee to share his vaccination status with his employer who does not want to share. This is a testing rule that includes a carveout for individuals who choose to get vaccinated and report that to their employers.

  3. My company has given a deadline of Nov 1 to provide proof of vaccination or access to the office is revoked. They will not document that we will be fired for refusing to be vaccinated. The will not offer testing or any religious / medical exemptions. This has been excused by OSHA.

    • OSHA has nothing to do with what your private employer has chosen to do here. The emergency standard that OSHA is working on will not require employers to implement hard vaccine mandates, and in any event, the OSHA ETS has not even been issued yet.

      But good for your employer for voluntarily doing the right thing here.

  4. I would like to know about employer mandated vaccinations that results in death or injury. I had a friend a pipe worker die twelve hours after his first shot. Are the employers directly responsible or liable for that? If a hard had required to be worn on the job site causes injury employers are responsible. Also who pays for the tests?

    • Your anecdote is highly suspect, but the answer to your question is pretty clear, and it has nothing to do with this OSHA ETS. State workers’ compensation laws will apply, and they are not homogeneous. But as a general rule, if an employee is injured as a result of an employer-mandated or otherwise work-related policy or workplace condition, the employee’s remedy is that which is provided under the workers’ compensation law. Since OSHA’s emergency standard will not require any employer to require any employee to get vaccinated, adverse impacts of vaccination that result from an employee who opts for the vaccination option (instead of the testing option) would likely not find that harm to be compensable by the workers’ comp scheme. However, if the employer does mandate vaccination as a condition to remain at work, then harm from the vaccine would be covered by workers’ compensation. Either way, the ETS will also provide for mandatory paid time off to recover from any adverse effects of the vaccines, but I expect that will be limited to a day maximum for each dose. Regardless of any of that, there could be products liability claims brought against the manufacturers of the vaccine or those that administer it. There are liability limitations at issue in connection with vaccinations, but there is potential there.

  5. I am confused, you state that OSHA will not require employers to implement vaccine mandates but isn’t that what the order does?…
    “Under this standard, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.” from https://www.osha.gov/news/newsreleases/national/11042021

    • No. It doesn’t. It’s worded very strangely, sort of suggesting that it will mandate vaccines, but they did just to make it clear that employers were permitted to mandate vaccines if they wanted to. But if you read it carefully, it’s clear that employers are required to either mandate vaccines, or require testing for individuals who do not want to get vaccinated.

  6. I don’t see where any of this is constitutional. I had 7 vaccinations when I was growing up, legitimate vaccinations, no mandates of any kind for them. This is starting to look like an absolute dictatorship to me.

    • Most (or perhaps all) of those vaccinations you had as a child were mandated to attend a public school. Many other vaccinations are mandated to work in healthcare settings or to be active duty military. Others are mandated to travel to certain regions of the world. The US Supreme Court has determined that vaccine-mandates are constitutions almost 100 years ago.

      • But I know I went to school with kids that did not get vaccinated and those kids were not required to stand out as “different”. Unless you asked them specifically no one ever knew. That is why I am confused on the private sector mandate — military, healthcare, federal etc. you sign up to work knowing these rules. I understand vaccines were mandated in the past but they are normally to prevent a reoccurrence, I think of the Covid19 vaccine as similar to Flu Vaccine — will have to be updated yearly to be active.

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