The Occupational Safety and Health Administration (OSHA) just published their Emergency Temporary Standard for COVID-19 Vaccination and Testing. The document on the federal register is about 490 pages, but the actual meat and potatoes, if you will, is around 20 pages. Most of the preamble stuff is filled with court cases and information justifying the rationale for creating this standard in the first place. If you don’t care about a lot of that stuff, you could probably just read the FAQ they produced, as it does a decent job answering many of the questions I’d expect the average person would have. You can find that link here: https://www.osha.gov/coronavirus/ets2/faqs
In short, it appears that employers have the option to either require vaccinations, or recommend vaccinations with testing/mask use for the unvaccinated. They have graciously included a few examples of what this policy should look like if you choose to go full mandatory vaccination or would rather take the more subtle route and only recommend that your employees get vaccinated or be tested and wear a mask. There shouldn't be any major surprises with what the ETS says, but if by chance you've been in your hermetically sealed bunker since January 6th, I'd like to welcome you back to the real world and feel honored that this blog is the first item you chose to read.
So as predicted the ETS is a vaccination mandate for employers...sorta. As stated previously OSHA is giving companies basically two options, implement a 100% vaccination requirement or a hybrid that requires weekly testing and mask usage for the unvaccinated. This was something I was surprised to see, as I didn't think that the ETS would give employers "an out" per se. You can read my predictions from my earlier blog I wrote before the standard was released
Here are some key takeaways:
There is a lot of attention given to January 4th as the deadline that the ETS has to be in effect, but to focus primarily on that date would miss the forest for the trees. There is a ton of preliminary ground work that has to be done within 30 days of this ETS going into affect. If you've already started tracking vaccination status and have a plan put together, you'll find the next 60 days very easy and will only have to worry about reviewing religious exemption letters offered by the Church of the Flying Spaghetti Monster. Here's a chart that better explains what is expected of employers.
One thing to note, is the effectiveness date of the ETS. I've seen a lot of Safety Pundits (not even sure that's a thing) argue that how can this be a priority if it doesn't go into effect until January? Well, thanks for asking Karen. The standard being "in effect" means that the clock starts and that employers have until 60 days post the publication of the ETS. I'm assuming many of the "Safety Pundits" would be outraged if the ETS came out and it said you have to be in compliance today with all of the requirements listed there. There would be a loud chorus of angry "Safety Pundits" saying that there wasn't enough time given. Anyhow, I digress...
Now, If you are a federal employee or contractor, you most likely are already covered under EO 14042 or 14043 and have guidance already laid out by the Safer Federal Workforce Task Force and, according to OSHA, these measures are sufficient to meet the obligations under the ETS. If you aren't in one of the aforementioned categories then you will have to determine if you work for a company that employs 100 people or not. The 100 employee threshold that OSHA is using apparently comes from the other regulatory definitions of small businesses (ie: Affordable Care Act), so thanks Obama. It’s worth noting that OSHA chose that number because of their belief that these companies can implement the standard’s requirements promptly compared to smaller businesses, but they are assessing the capacity of smaller employers to comply and we may see changes to the ETS that reflect this in the future. If you’re wondering how they [OSHA] would know whether or not you have 100 employees, it’s important to recognize that companies larger than 10 employees are legally required to submit an OSHA 300 log every year, and that log has information that can easily identify the size of your organization.
From the ETS, pg. 339. “In the Affordable Care Act, Congress set the maximum size of a “small employer” at 100 employees for purposes of allowing greater flexibility to these employers. 42 U.S.C.A. 18024(b)(3). Likewise, private employers with fewer than 50 employees are exempt from complying with the Family and Medical Leave Act, in recognition of smaller employers’ decreased administrative capacity, as well as their inability to easily accommodate employee absences.” So, again, thanks Obama.
With regard to natural immunity, OSHA is concerned that it would be infeasible for employers to operationalize a standard that would permit or require an exception from vaccination or testing and face covering based on prior infection with COVID-19. So unfortunately if you just recovered from COVID-19, looks like you're out of luck...although you are lucky to be alive, so there's that.
I learned there’s a national standard for face coverings, ASTM F3502-2. That's it, that's the sentence.
OSHA is utilizing the “grave danger” definition to justify the ETS. Grave Danger, according to the Fifth Circuit, basically means “the danger of incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health.” Keep in mind they could have used the definition of “significant risk” as well, but it most likely wouldn’t be enough to substantiate an ETS. I predict this is one area that might be challenged in court.
Much like my previous blog, I had predicted they would use previous precedents regarding biological hazards to justify the ETS. In the standard they mention OSHA has also previously regulated biological hazards like SARS-CoV-2 as health hazards under section 6(b)(5), for example in the Bloodborne Pathogens (BBP) standard, 29 CFR 1910.1030, which addresses workplace exposure to HIV and Hepatitis B. So basically if you are a plumber and have received a Hep B shot, I doubt you could make an argument for an exemption for COVID-19.
One particular area that I found most interesting was in OSHA’s departure from having employers pay for face coverings. In the preamble they write, “OSHA only requires employers to bear the costs of employee compliance with the preferred, and more protective, vaccination provision, but not costs associated with testing. The agency does not believe it appropriate to impose the costs of testing on an employer where an employee has made an individual choice to pursue a less protective option. For the same reasons, OSHA has also determined that it is not appropriate to require employers to pay for face coverings for employees who choose not to be vaccinated.” It’s that last part that seems significant for me. In most of the earlier guidance provided by OSHA they have deemed face coverings as a method of control to prevent the spread of COVID-19. As a result, this control method is something that employers typically had to supply and furnish for employees. They’ve never specifically identified face coverings as personal protective equipment (PPE), since most two layer cloth masks don’t “personally protect” the wearer, only those around them. So by stating that the employee now has to pay for their own face coverings, I’m curious how OSHA will classify this method of protection. This may be another area that will also be challenged in court and one I'm closely watching.
I was surprised to see that they included a recognition that COVID-19 is not a uniquely work-related hazard (page 22), but does point out that employers still have a duty to protect employees from the occupational transmission of SARS-CoV-2. This is pretty standard, as OSHA recognizes that active shooters are a thing, and in the workplace employers have a responsibility to protect their employees from this as well.
“OSHA estimates that this ETS would save over 6,500 worker lives and prevent over 250,000 hospitalizations over the course of the next six months. Here, the mortality and morbidity risk to employees from COVID-19 is so dire that the grave danger from exposures to SARS-CoV-2 is clear.” This number seems about right, as to date, there have been roughly 1,768 people who have died from COVID-19 as a result of a work related exposure (source: https://www.osha.gov/fatalities/covid-19)
Employees who report to work at least once every seven days (outdoors work is excluded in some cases) must be tested. The test must be one of the FDA approved ones, and must have a proctor is it is a self-administered one. Basically this one will also be challenged, I imagine, because by proctoring a self-test you are basically saying that you don't trust the employee. It's not unusual, per se, because getting drug tested generally requires you to go to a testing facility, especially if you are a CDL driver. But where I see this running into problems is employees coming into work, testing in front of their employer, and finding out that they are positive. Obviously, there's a requirement to protect the employee's medical history, and if they are positive you don't want a ton of people around. I think this will create challenges for companies that don't have a tele-doctor program that can proctor these test remotely. In addition, and another space to watch carefully, is that OSHA has determined that there are sufficient COVID-19 tests available and adequate laboratory capacity to meet the anticipated increased testing demand related to compliance with the ETS testing requirements. Not sure about where you live, but here in Virginia many testing locations are only conducting tests on those who are symptomatic, and good luck finding tests online or at Walgreen's. That said, OSHA seems to recognize that this "could" be an issue and as a result included this statement, "...in the event that an individual employer is unable to comply with paragraph (g) of this ETS due to inadequate test supply or laboratory capacity, OSHA will look at efforts made by the employer to comply, as well as the pattern and practice of the employer’s testing program, and consider refraining from enforcement where the facts show good faith in attempting to comply with the standard."
On page 216 there is a pretty interesting chart that shows the ‘Percent of Employees who Teleworked because of Covid-19 and on page 220, it has a list of covered entities that the ETS would apply. They use the North American Industrial Classification Standard (NAICS) to delineate the various companies. If you’re not sure if your organization is one of these covered entities, ask you HR or Safety person if they can show you the OSHA 300A log. It’s a document that is supposed to be posted February to April, but most companies just leave it up all year round. It’ll have your NAICS code on it, and is supposed to be available to employees if they request it. Once you find out what your NAICS code is, you can compare it to the chart. Note: There's about a 95% chance your company will be a covered entity.
Another cool little chart on page 229, shows the percentage of exemptions (Medical, Religious, and Hesitant). There's a lot you can infer from the sample of people used, and would be interested in seeing this updated six month from now.
OSHA assumes there will be no costs to employers or employees associated with the vaccine itself. However, to provide support for vaccination of employees, OSHA estimates that it will take an average of 15 minutes of travel time, each way, per employee to travel to a vaccination site (for a total of 30 minutes). OSHA then estimates 5 minutes to wait, fill out any necessary paperwork, and receive the shot, and a post-shot wait time of 20 minutes, per employee. Some firms, particularly larger ones, will find it cheaper to have vaccines administered on site. They may have an on-site health clinic or may hire a 3rd party purveyor to come to the facility. This will minimize travel and also allow the companies to mitigate some of the logistical issues that may be preventing employees from receiving a vaccine (finding a convenient appointment time, etc.). OSHA estimates that 10 percent of firms with employees between 100 to 500 employees will select this option….In OSHA’s cost analysis, OSHA assumes that all employees will be vaccinated during working hours and employers would adjust the employee work schedule to ensure that the employee would not become eligible for overtime pay as a result of the vaccination time. However, it should be noted that, if an employee chooses to receive the vaccine outside of work hours, OSHA does not require employers to grant paid time to the employee for the time spent receiving the vaccine during non-work hours
For those wondering about the Post Office exemption, don’t worry: “Note, however, that under the OSH Act, the U.S. Postal Service is treated as a private employer, see 29 U.S.C. 652(5), and it is therefore required to comply with this ETS in the same manner as any other employer covered by the Act.” Hopefully everyone can calm down now about the Postal Service...although I'm still waiting for that Amazon package to arrive.
Finally, the Act and its legislative history “both demonstrate unmistakably” OSHA’s authority to require employers to temporarily remove workers from the workplace to prevent exposure to a health hazard. OSHA ostensibly recognizes that this ETS would be challenged, because of the invocation of Executive Order 13132 regarding federalism and preempting that this standard will have precedent over all existing state covid standards. So that means if you are in a state that has a state approved OSHA plan, like Virginia, expect that there will be changes to your state covid-19 requirements, here's where OSHA gets that authority, per 29 CFR 1953.5 (b)(1) ) "Immediately upon publication of an emergency temporary standard in the Federal Register, OSHA shall advise the States of the standard and that a Federal program change supplement shall be required. This notification must also provide that the State has 30 days after the date of promulgation of the Federal standard to adopt a State emergency temporary standard if the State plan covers that issue. The State may demonstrate that promulgation of an emergency temporary standard is not necessary because the State standard is already the same as or at least as effective as the Federal standard change. The State standard must remain in effect for the duration of the Federal emergency temporary standard which may not exceed six (6) months."
All that to say, OSHA made it pretty clear that they have the authority and responsibility to enact this ETS for COVID-19. Much like my previous blog, I'm making no judgement about whether you should or shouldn't get the vaccine. Personally I'm vaccinated, as well as, my family and soon my children, but I do understand and empathize with those who have not reached the same level of confidence I have in the vaccine. OSHA has initiated a 30-day public comment period and is inviting comments on any aspect of this ETS and whether the ETS should become a final rule. The public comments will allow OSHA to gather information, diverse perspectives, and technical expertise to help the agency in considering next steps. Here's some information for how you can make your voice heard: OSHA’s Vaccination and Testing ETS: How You Can Participate.