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 12^th, but every day, OMB’s website updated to include more and more stakeholder meetings.  As of this morning (Friday, October 22^nd), 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 9^th, had his Senate HELP committee confirmation hearing on May 27^th, and was approved out of the HELP Committee on a near-party line vote on June 16^th.  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 25^th.

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 18^th 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.