Q&A – Sept.

19, 2021
OSHA’s COVID-19 Emergency Rulemaking
for Vaccine and Testing Mandates
Do you understand Exec Order re federal contractors/subcontractors mandate for vaccination will be

Q. limited only to contractor personnel who need to be onsite at federal locations, limited to all contract
personnel working on such contracts irrespective of where they do their work, or for ALL personnel of
federal contractors, regardless of whether personnel are even working on gov't contracts and/or onsite?
As of late July 2021, Pres. Biden had set a “soft” vaccine mandate for federal agency workplaces, which covered
A. federal employees, contractors, and visitors who were physically working in a federal building. The President’s
Safer Federal Workforce Task Force also issued newly updated guidance that provides:
"Prior to being subject to a contractual requirement to be vaccinated, onsite contractor employees who are not
fully vaccinated (or who decline to disclose vaccination status) are required to show proof of a negative COVID-19 test
result from within the previous 3 days before entry to a federal building or federally controlled indoor worksite."
The new Executive Order from September 9th (EO #14042) significantly expands COVID-19 related requirements
for federal contractors and subcontractors. For federal contracts entered into anew or renewed as of 10/15/21,
federal contractor employees will be required to be vaccinated with the full details to be set by regulatory provisions
to be issued by FAR within the next few weeks. For now, we have the language of EO #14042 itself which refers to
vaccination requirements for federal contractor/subcontractor employees who work at "any workplace location"
in which an individual is "working on or in connection with a Federal Government contract," but it is not clear
how this will apply to work in support of a federal contract that is NOT performed at a federal installation, or
locations where some employees work on federal contracts/subcontracts but others do not. If the prior soft
mandate or newly updated guidance from the Task Force are any indication, it is possible there will be limits on the
new hard mandate to only workers present at a federal workplace. Even if the new mandate extends to federal
contract employees working remotely, there is good reason to believe the requirements will be limited to those who
are actually involved in servicing the federal contract.
What we do know is that the FAR intends to issues guidance clarifying the scope, providing definitions, and
identifying exemptions for how it will implement the President’s new EO by September 24th.

Q. Will it likely be up to the states whether UI benefits will be paid to those who quit due to the
mandate? And presumably the employers will be on the hook for the cost of the benefits.

A.
Yes, we believe that it will be left to the states to decide whether and how to handle unemployment benefits claims filed
by individuals who quit rather than receive a COVID-19 vaccine. Again, given the Biden Administration’s focus on
increasing the number of vaccinated employees, we do not believe the ETS will include any language that would make
it easier for someone who voluntarily leaves their job to avoid being vaccinated to receive benefits. At the same time,
though, the federal government does have the ability to preclude states from awarding benefits to such individuals.
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Q.
Who will be responsible to pay for the weekly testing for an employee who declines the vaccination?
What about for non-vaccinated workers who claim a religious or medical reason?

A.
Biden’s announcement and Action Plan do not say whether it is the employer or employee who will
generally be responsible for the costs associated with weekly testing, and there are reasons that point
in both directions:
Clues in the Language of Biden’s Action Plan. The President’s new COVID-19 Action Plan states that
unvaccinated workers need to “produce a negative test result on at least a weekly basis before coming to
work.” The other requirements discussed in the Action Plan consistently state an affirmative duty by
employers, but regarding testing, it talks about an employee’s action of “producing” a negative test result
to the employer. We would have expected more explicit language from the White House (e.g., employers
shall “conduct,” “ensure,” or “provide” testing at no cost), if it was set on having employers pay.
Biden’s Tone –Anti-Unvaccinated. The President is clearly fed up with unvaccinated individuals. In his
speech announcing the ETS he said:
“What more is there to wait for? What more do you need to see? We’ve made vaccinations free, safe
and convenient. The vaccine is FDA approved. Over 200 million Americans have gotten at least one
shot. We’ve been patient, but our patience is wearing thin. And your refusal has cost all of us.”
That is pretty direct blame being cast at unvaccinated individuals, so it should follow that the intent is
to apply some pain to their decision to remain unvaccinated. It would also seem to plainly undermine
the purpose of the ETS to allow such an easy off-ramp from getting vaccinated; i.e., they still do not have
to get vaccinated and the alternative is a testing program that costs them nothing and gets them paid for
time spent not working.
But Beware of the Influence of Unions. On the other side of the scale, however, as OSHA crafts the ETS,
the Dept. of Labor will almost certainly face pressure from its most coveted constituency – national
unions – to not force employees to bear any cost. And that certainly aligns with OSHA’s natural instinct
to not place personal burdens on workers.
Incentivizing Employers to Voluntarily Implement “Hard” Vaccine Mandates. Another reason OSHA
may put the cost of testing on employers’ shoulders is the possibility that many employers will just not
provide the testing option if the employer has to pay for it. Just because the ETS will allow for both a
vaccine AND testing option does not mean employers have to provide both. EEOC, OSHA, and the Dept.
of Justice, as well as multiple federal courts, have already expressed that employers may lawfully
implement hard vaccine mandates in the context of this pandemic. The Biden Administration likely felt
it did not have legal authority to set such a hard line for private employers, but that is clearly its
preference. So, asking employers to pay for the weekly testing could be a strategic way to get that result.
Ultimately, while we think the ETS should address the costs of compliance in line with the incentives the
ETS is trying to create (i.e., employers bear the cost for the outcomes desired by the Administration –
getting employees vaccinated – but employees pay for testing when they refuse to get vaccinated), but
it is hard to envision this Dept. of Labor, made up of officials with very deep, personal roots in organized
labor, putting a costly burden on workers. Without serious advocacy by industry, our best guess is OSHA
will place the cost burden on employers.
Testing as an “Accommodation” for religious or medical exemptions. If the testing costs do run to
employees, we think the situation will be different in the circumstance of an employee who declines
vaccination because of a bona fide medical or religious reason. Testing is not the only accommodation an
employer can opt for in that circumstance, but if testing is the chosen accommodation, the employer will
almost certainly be expected to pay for that testing. It would not really be an accommodation if the employee
was expected to pay for the testing.
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Q. When should we expect the ETS to be issued and become effective?

A.
Similar to the Healthcare ETS, we expect that the new ETS will become effective immediately when it is
published in the Federal Register. When that happens, however, is an open question. The President
talked about OSHA issuing the rule "in the coming weeks." Looking back at the prior COVID-19 ETS, after
President Biden’s Day 1 Executive Order directing OSHA to “consider whether any emergency temporary
standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such
standards are determined to be necessary, issue them by March 15, 2021[,]” we now know that it took
OSHA approx. 16 weeks to deliver a proposed rule to OMB. We also know that OSHA considered that to
be a very quick turnaround. The ETS contemplated here, however, is quite different in complexity and
scale. This will be a much shorter, simpler regulation, so we expect the process to take about half as long.
Our guess based on what we have heard – that the agency had not put pen to paper on this ETS as of
yesterday – is that a proposed ETS will make its way to OMB in six to ten weeks. We also expect that the
turnaround time at OMB will be much shorter than the multiple months the healthcare ETS spent there
– more likely two weeks for this ETS. So that would put a final ETS issued in approx. three months (vs.
the six months for the prior COVID-19 ETS).
Once we have a new ETS in place, we think it is likely that employees will have a month and a half or so
to get vaccinated, to avoid weekly testing. Our prediction is based largely on various state/local vaccine
mandates that were becoming more and more popular for the healthcare industry over the past month
or so. For example, the Los Angeles County Department of Public Health issued a Public Health Order on
August 12, 2021, requiring workers who provide services or work in various healthcare facilities to have
their first dose of a one-dose vaccine regimen or their second dose of a two-dose regimen by September
30, 2021. Similarly, the Denver Department of Public Health and Environment issued a Public Health
Order on August 2, 2021, requiring personnel of various healthcare entities, or types of entities, to be
fully vaccinated by September 30, 2021.

Testing availability is a huge issue. Rapid tests are in short supply (and it is not clear how
employees could “share” those results unless taken on-site at work), and PCR testing is running
Q. a several-day wait or requires severe symptoms in many areas of the US right now. Where are
they (or we) going to get all the tests that would be required? Would employers have to bar
workers if they don’t provide that test result on a weekly basis?

A.
The President’s new COVID-19 Action Plan outlines several steps the Administration has taken to try to increase
the availability and accessibility of COVID-19 testing. For example, the Biden Administration has procured
“nearly $2 billion in rapid point-of-care and over-the-counter at-home COVID tests” and, using the President’s
authority under the Defense Protection Act, plans to “ensure a broad, sustained industrial capacity for COVID-
19 test manufacturing.” Moreover, President Biden announced that certain retailers will start selling at-home
rapid tests at-cost for several months. To the extent employers or employees cannot feasibly access testing, it
is possible OSHA would exercise some enforcement discretion, as we have seen from OSHA issue throughout
the pandemic; e.g., relaxing requirements for respirators and fit testing when respirators and fit test kits were
in short-supply and intended to be reserved for healthcare workers. OSHA instructed its field offices to exercise
enforcement discretion concerning OSHA’s annual fit-testing requirements under OSHA’s respiratory
protection standard so long as the employer made a good faith effort to comply. In that context, OSHA would
expect to see evidence of the effort may to obtain testing, and if that is demonstrably feasible, would expect to
see implementation of interim, alternative measures; e.g., use of more substantial respiratory protection,
greater use of remote work, further isolating/distancing workers, etc.
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Q. Are there potential wage and hour issues if employees have to pay for testing and it reduces their wage below
minimum wage? Tests should be free, but I don't know if weekly testing would be covered by insurance.

A.
Generally, any testing protocols must comply with applicable wage and hour laws, which provide that time
spent on receiving employer-required tests should almost always be treated as compensable. Indeed, federal
regulations state that time spent by employees waiting for and receiving medical attention on the premises or
at the direction of the employer during employees' normal working hours on days when they are working
constitutes hours worked and thus are compensable. Here, however, the tests would not be required solely by
the employer but rather are a result of a government mandate. In a similar context, last month the Ninth Circuit
affirmed the dismissal of a wage & hour lawsuit that alleged that an employee was not paid for time spent
waiting in the TSA security line. The court held, in part, that since the security screening is mandated by federal
law, the company exercised no control over the employee during the screening process and thereby was not
responsible for paying the employee for that time. That rationale is directly applicable to government
mandated COVID testing/vaccinations, as the employer exerts no control over the employee when he or she is
going for their test or vaccine. Thus, unless regulations come out to the contrary, we believe that under this
Action Plan you would not need to pay employees for the time they spend getting tested.
It is important to keep in mind, however, that the FLSA requires an employee to be paid at least the state and
federal minimum wage for all hours worked during each workweek. Thus, if an employee’s weekly testing
reduces their pay to an amount that is below the minimum wage, he/she may not be receiving at least the state
or federal minimum wage for all hours worked. Given the minimal amount of time it takes to receive a test, and
that a test would only be necessary once a week, we do not believe it is likely that an employee’s weekly wages
would fall below the applicable minimum wage. In the unlikely event that scenario does occur, however, as the
employer you should make certain that they receive at least an amount equal to their minimum wage for all
hours worked during that workweek.

Q. Where are they (or we) going to get all the tests that would be required - and the time to process?

A.
The Action Plan has outlined affirmative steps the Biden Administration has taken to ensure that there are sufficient
tests. For example, the Biden Administration has procured “nearly $2 billion in rapid point-of-care and over-the-
counter at-home COVID tests” and plans to “ensure a broad, sustained industrial capacity for COVID-19 test
manufacturing.” Moreover, President Biden announced that certain retailers will start selling at-home rapid tests.

Q. Does this standard immediately apply to State OSHA plans, or do they need to produce their own
emergency standard?

A.
State Plan states will need to produce their own standard (though, sometimes, this means adopting the Fed
OSHA standard verbatim). According to OSHA’s policies on emergency standards, “State Plans are required
to have an ETS that is at least as effective as an ETS issued by federal OSHA 30 days following
publication.” Indeed, OSHA explicitly required the State OSH Plans to adopt a substantially similar version
of the COVID-19 ETS for healthcare within 30 days of when fed OSHA adopted that rule earlier this
Summer. Expect to see an identical provision in this vaccination-related ETS. However, while that is a
requirement under the OSH Act, State Plans have their own legal/regulatory processes that they must
follow to adopt new regulations under their respective state laws, so it is not always realistic that they can
issue a new regulation in a month. Most of the States did adopt healthcare ETSs (mostly verbatim versions
of fed OSHA’s ETS) around the one-month mark, and we can expect to see the same with this new ETS.
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Q. Does the OSHA ETS setting a work-related vaccine-mandate affect whether days away from work due
to adverse reactions to the vaccines are recordable on the employer’s 300 Log?
Earlier in the pandemic, OSHA issued an FAQ about the recordability of adverse effects of the vaccine explaining that
A. “OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines
at this time. Therefore, you do not need to record adverse effects from COVID-19 vaccines that you recommend, but do
not require.” We advocated hard to OSHA that this was a terrible policy decision, and that if the Administration wanted
employers to really push for more employees to get vaccinated, and even to set vaccine mandates, they should remove
disincentives like wrecking the DART rates of those employers who do mandate vaccines. Thankfully, OSHA saw the
light and reversed that interpretation.
OSHA’s current FAQs provide:
“DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA
does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also
does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s
recording requirements to require any employers to record worker side effects from COVID-19 vaccination
through May 2022.”
It is hard to imagine that OSHA would reverse that decision in the context of a new regulation that has, as its sole purpose, to
encourage more vaccinations. The coalition of employers and trade groups that CMC is organizing will almost certainly
advocate to OSHA to memorialize that interpretation – that adverse reactions to the COVID-19 vaccines are NOT recordable
under any circumstance – in the ETS itself, so it is not subject to change based on the whim of some policymaker at OSHA.

Q. What do we expect will be acceptable in term of the type of testing – PCR or Rapid Antigen Tests?

A.
We anticipate either PCR and Rapid Antigen tests will be acceptable, to the extent that the test is approved by the U.S. Food
and Drug Administration (FDA) or authorized by an Emergency Use Authorization (EUA) from the FDA to diagnose
current infection with the SARS-CoV-2 virus. That is how OSHA defines “COVID-19 test” under its existing ETS for
healthcare. See 29 C.F.R. 1910.502(b). Additionally, although PCR tests have come to be known as the gold standard for
testing, we think Rapid Antigen Tests will be acceptable, in part because Pres. Biden’s Path Out of the Pandemic: POTUS
COVID-19 Action Plan (“Action Plan”) speaks quite a bit about rapid tests. For example, the Action Plan states:
“Biden’s plan will mobilize industry due to the urgent and compelling need to accelerate the production of rapid COVID-
19 tests, including at-home tests, and continue to ensure that manufacturers prioritize creating these products to prevent
the spread of COVID-19 and its variants. Using authorities of the Defense Production Act and through the procurement of
nearly $2 billion in rapid point-of-care and over-the-counter COVID tests – 280 million tests in all – from multiple COVID-
19 test manufacturers, the Administration will ensure a broad, sustained industrial capacity for COVID-19 testing
manufacturing…. To improve access to rapid tests for all consumers, top retailers that sell at-home, rapid COVID-19 tests
– Walmart, Amazon, and Kroger – will offer to sell those tests at-cost for the next three months.” See id. (emphasis added).
We think this focus in the Action Plan on expanding access to rapid tests is at least in part related to the expected surge in
demand for tests to come once the ETS takes effect.

Q. With the delay for 3 Months, is there authority that requires employers to take action legally now?

OSHA has its enforcement authority under Sec. 5(a)(1) of the OSH Act (the General Duty Clause), and it has used that
A. authority to cite employers for not implementing recognized COVID-19 protocols, mostly masks and distancing, and the
like, but we do not anticipate OSHA would exercise that authority to fine an employer for not mandating vaccination or
requiring regular testing. So, until the new ETS is issued, employers are not obligated to take action on the vaccination
front, unless they are covered by one of the President’s other Executive Orders (e.g., for federal contractors or
healthcare), or by some similar action by a state governor or health department.
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If an employee manages the weekly testing on his/her own (i.e., either performs a home test or gets

Q. tested a site that is not the workplace), what will OSHA expect from the employer to verify that the
testing was completed, and a negative test result was obtained? How should employers document
this requirement was met?

A.
The President’s Action Plan states that unvaccinated workers need to “produce a negative test result
on at least a weekly basis before coming to work.” The Action Plan does not, however, speak to form in
which the negative test result needs to be produced, just as it is silent about how employers will be
expected to verify employees’ vaccination status. A guidepost we can look to for what OSHA may expect
in terms of employers documenting the completion of these two, alternative means of compliance –
confirmation of vaccination or verification of a weekly negative test result – we can look to OSHA’s
existing COVID-19 emergency standard for healthcare. The healthcare ETS provides exemptions and
other relaxed requirements based on vaccination status, and accordingly, addresses how healthcare
employers should verify employees’ vaccination status, and it is pretty loose about the methods
employers may use to document that. Specifically, in the Preamble to the ETS, OSHA states:
“With regard to determining employees’ vaccination status, there are a number of ways
employers could approach this. For example, small employers may know that all employees
are already vaccinated because it was a topic of conversation as people became eligible and
received the vaccine. Other employers may have required employees to be vaccinated and will have
records of vaccinations because they or their agents, as permitted under other laws,
administered a vaccine. Still others could, when otherwise not prohibited by law, ask
employees to either provide documentation of, or attest to, their vaccination status.”
We think OSHA will take the same approach with the new vaccination and testing related ETS. That
is, employers can either: (i) take a copy or photograph of the vaccination card and/or lab or home test
results; (ii) develop a self-attestation form to be completed and signed by the employee affirming s/he
was vaccinated (with dates and the type of vaccine) or received a negative test result (with date and
type of test); or (iii) collect the information by reviewing documentation or asking verbal questions
and recording the information on a log or matrix.

Q. Will there be any distinction made between full and part-time workers?

A.
While we cannot say for certain whether and/or how part-time (and temporary) workers will be
factored into determining coverage under the ETS, we believe that OSHA may adopt an approach
similar to what is used to determine application of the WARN Act in mass layoffs. That law applies to
private employers with 100 or more employees, not counting employees who have worked less than 6
months in the last 12 months, nor employees who work an average of fewer than 20 hours per week.
In some cases, independent contractors and subsidiary companies may be treated as part of the same
employer when counting the number of employees for coverage purposes. Under the WARN Act, the
100-employee threshold can be met with at least 100 full-time employees, or with 100 or more full-
and part-time employees who work at least 4,000 hours per week in the aggregate (exclusive of
overtime hours). We assume that OSHA will adopt a similar approach in the ETS and count the total or
aggregated number of hours worked by part-time employees, possibly even using the same threshold
of 4,000 hours per week.
Note, also, that temporary employees are counted for purposes of WARN Act applicability but are not
entitled to WARN notice. Given the Biden Administration’s stated intent to vaccinate as many
individuals as possible, we would not be surprised to see a provision in the ETS that imposes a shared
obligation on the host employer and the staffing agency to ensure that individuals assigned for a certain
period of time to a particular host are vaccinated, similar to how OSHA seeks to impose a joint
responsibility for reporting serious injuries to temporary workers.
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Q. What position will the UFCW take requiring the burden of a test falling on the employee without bargaining?

A.
President Biden ran his campaign on a strong pro-union platform and promised to be the most pro-union
president ever. His vaccine mandate and testing requirements, on the other hand, may put him at odds
with organized labor. After President Biden’s speech on Thursday, several labor unions issued strong
statements against a mandate preferring instead for the voluntary encouragement of vaccines. As testing
would be a mandatory subject of bargaining, labor unions will likely expect any employers to bargain
with the union prior to implementing any changes among bargaining unit members, including the time
and cost of the test. That was the position of the UFCW in August 2021 when Tyson Foods announced its
vaccine mandate. UFCW issued a statement stating that any vaccine mandate must be negotiated so that
the workers have a voice in the new policy and the policy is fairly implemented.

Assuming employees bear the burden of cost/time to get tested, if many employees cannot

Q. provide test results in a given week because of lack of availability or lag due to large volume of
testing, are employers expected to terminate their employment or place them on unpaid leave
until they can get a negative test result? We're all facing the same labor shortage.

A.
We do not think it is prudent to terminate the employment of individuals who do not produce a negative
test due to no fault of their own, such as a lack of availability or lag due to a large volume of testing. An
unpaid leave of absence until they can get tested (and receive a negative result) would be much less risky
from a legal perspective and, indeed, although it is not 100% analogous, many companies are placing
employees who have sought exemptions to mandatory vaccinations on unpaid leaves of absences (see
article discussing one employer’s vaccination policy here).

Q. What about states like California that require payment for all time worked. Do we have to pay for
the time to get the test?

A.
The State Plans will have the opportunity to determine how they would prefer to implement a vaccination
and testing emergency standard as long as it is substantially similar to the federal rule. Ultimately, we expect
that most of the State Plans will simply adopt verbatim whatever fed OSHA issues; i.e., whatever federal OSHA
determines this ETS will require in terms of which entity pays for testing, is likely how it will be implemented
almost everywhere in the country. The exception to that is likely the DOSH agencies on the West Coast (i.e.,
Cal/OSHA, WA DLI, and OR OSHA). For example, regardless how fed OSHA handles the issue of who pays for
testing, based on the manner in which Cal/OSHA has implemented its own COVID-19 emergency temporary
standard, we anticipate that in California, employers are going to be responsible to pay for testing, and that
employers will also be expected to pay for the time employees spend getting tested. Under Cal/OSHA’s
existing COVID-19 ETS, when employees are required to be provided testing by the employer (e.g., in the
context of a close contact exposure at work or an outbreak in a discrete work area), California employers are
required to “make COVID-19 testing available at no cost, during paid time….” Under the Cal/OSHA ETS, the
employer may make such testing available in the workplace or offsite, but where the employer sends an
employee for testing offsite, the employer must pay the employee’s wages for time spent being tested
(including time traveling to/from the testing site) as well as reimburse the employee for any related travel
expenses, i.e., mileage reimbursement if driving personal vehicle or cost for public transportation. See
DOSH’s FAQs on this provision of the Cal/OSHA ETS. We would expect Cal/OSHA (and perhaps other State
Plans that have been most aggressive on the COVID-19 front) will follow that same model for this new
ETS. Other State Plans, however, may take a different approach. For example, the state OSH agency in North
Carolina has been reluctant to overburden employers during the pandemic.
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Q. Does an employer requiring an employee to share his/her vaccination status violate HIPAA regulations?

A.
No. The HIPPA privacy standard prohibits the release of protected health information by healthcare providers, health
plans, and healthcare clearinghouses to third parties without the consent of the patient. HIPPA does not regulate
whether an individual can be required to answer questions by his/her employer about his/her own vaccination status,
or any other health issue. There are limits under the ADA about health-related information that employers may request
from their employees, but EEOC has verified that during this pandemic, because of the direct threat to the workplace
that spread of COVID-19 presents, employers may lawfully request/require under the ADA information about
employees’ vaccination status. That being said, information about an employee’s COVID-19 vaccination is considered
confidential medical information under the ADA, and the ADA requires an employer to maintain the confidentiality of
employee medical information, such as documentation or other confirmation of COVID-19 vaccination. This ADA
confidentiality requirement applies regardless of where the employee gets the vaccination. Although the EEO laws
themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of
vaccination, this information, like all medical information, must be kept confidential and stored separately from the
employee’s personnel files under the ADA. Additional information on this topic can be found on the EEOC Technical
Assistance Question and answer website, beginning at section K.4.

Interesting the shift from OSHA's current guidance, which indicates the intent to protect
unvaccinated individuals (and high-risk individuals), and Biden's announcement, which made
Q. clear that his plan is focused on protecting the vaccinated from the unvaccinated. Any thoughts on
whether OSHA will shift its messaging as well? And will it be harder to demonstrate the "grave
danger" element of an emergency rule if the focus is on protecting already-vaccinated workers?
We believe the messaging from the White House will be adopted by the Department of Labor and become part of
A. Secretary Walsh’s regular talking points. OSHA too will likely generally mimic this message, and the new ETS clearly is
being designed to move as many employees as possible from unvaccinated to vaccinated, and will be based on risks
identified from the unvaccinated community. The evolution of the messaging seems driven by a few key scientific findings,
which are: (1) the unvaccinated population is much more vulnerable to serious and severe illness from COVID-19 (so we
need to get them vaccinated); and (2) the transmissibility of the Delta variant makes this effort all the more urgent.
Regarding the question of “grave danger” and whether this new ETS will be susceptible to a legal challenge on that basis,
we think OSHA’s best argument would be that the virus presents a grave danger to the unvaccinated community, and that
alone justifies a rule narrowly designed to incent employees to become vaccinated. Additionally, we expect the Agency
may argue that, without a rule like this, grave danger is presented by the increased threat of the development of a new
variant that is not responsive to the existing vaccines. But whether that potential threat rises to the level of grave danger
as contemplated by the OSH Act is certainly not a given.

Q. How might this new ETS apply to employees working remotely; i.e. those who are not reporting to
the employer’s brick and mortar workplace?

Because employees who work 100% remotely (i.e., do not have any interaction with coworkers) do not pose any risk
A. of exposure to the rest of the workforce, we do not expect the vaccine/testing mandate will apply to such
employees. Indeed, in describing the testing requirement, the President’s Action Plan states that unvaccinated workers
need to “produce a negative test result on at least a weekly basis before coming to work.” The implication there is that
these requirements would not apply to workers who do not come to work – to the workplace. That would also be
consistent with the manner in which OSHA’s existing COVID-19 ETS for healthcare operates. Specifically, that ETS does
not apply to “telehealth services performed outside of a setting where direct patient care occurs[,]” which is essentially
the healthcare industry’s equivalent of remote work. See 29 C.F.R. 1910.502(a)(2)(vii).
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Q. What procedural requirements apply with an ETS? Is there any notice/comment period?

A.
Unfortunately, no, there is no pre-rule notice and comment period. Because this will be promulgated as
an emergency temporary standard, the proposed regulatory text will not be available to the public before
it is issued as a final rule. However, we expect that like the ETS for healthcare, in the coming weeks, the
Office of Information and Regulatory Affairs (“OIRA”) within the Office of Management and Budget
(“OMB”) will host some stakeholder meetings to hear from industry and labor regarding the proposed
rule (without, of course, the benefit of having the proposed rule in front of them).
Conn Maciel Carey LLP organized the Employers COVID-19 Prevention Coalition to provide written
comments, participate in multiple OIRA stakeholder meetings, and otherwise advocate for a more
manageable ETS during OSHA’s prior emergency rulemaking (and Cal/OSHA emergency rulemaking, as
well), and we are doing so again to provide employers and trade groups an anonymous outlet to make
sure their voices are heard in this rulemaking process. Please contact Eric J. Conn, Chair of CMC's national
OSHA Practice, if your organization may be interested in participating in our coalition, and we will get
you additional information.

Q. Any idea how the 100-employee requirement will be counted? by location? companywide?

A.
What we are hearing from our contacts at OSHA is that the 100+ employee threshold will be counted
on an enterprise-wide/company-wide basis. If we look at this as a traditional workplace safety and
health regulation, with an intention to limit COVID-19 outbreaks in the workplace, and significant
outbreaks can only occur where there is a significant number of people present, it is possible OSHA
would look to establishment size (as opposed to company size) as the applicable employee count to
trigger coverage. However, this move by the Biden Administration appears to be more of a public
health initiative than a true workplace safety regulation, so looking to the gross number of employees
company-wide would make more sense in that context; i.e., counting all employees company-wide will
sweep more employers into this regulation, and that is the point. It also is not without precedence
that gross employee count company-wide is considered for coverage by an OSHA regulation — OSHA’s
injury and illness recordkeeping rule exclude small employers (fewer than 10 employees company-
wide). Considering the overall purpose of the rule, our best guess is the ETS that OSHA proposes will
be triggered by 100+ total employees company-wide.

Q.
Are you forecasting that a 3rd (booster) shot will be a component of the ETS; i.e., will OSHA
require a three-dose cycle to be considered “fully vaccinated”?

A.
Because the CDC has not (yet) changed its definition of “fully vaccinated” to account for vaccine boosters – that
is, people are still considered to be full vaccinated 2 weeks after their second dose in a 2-dose series or 2 weeks
after a single-dose vaccine – we do not expect the new ETS to mandate boosters. Indeed, the FDA convened
today and declined to officially approve boosters. However, that could all change. Pres. Biden’s Path Out of the
Pandemic: POTUS COVID-19 Action Plan speaks quite a bit about boosters as one of the elements of its goal to
further protect the vaccinated. The Action Plan states that “[t]he Administration is preparing for boosters to
start as early as the week of September 20th, subject to authorization or approval by the Food and Drug
Administration (FDA) and a recommendation from [CDC’s independent] Advisory Commission on
Immunization Practices (ACIP).” Whether or not required by OSHA, we certainly recommend keeping
documentation of employees’ booster shots in your employee vaccine status records.
 Page 10 | Vaccine and Testing Mandates Q&A | Conn Maciel Carey LLP

Q. Will the ETS account for employees who already had and recovered from COVID-19; i.e., will the ETS
provide for a natural antibody exemption to vaccination/testing requirements?

A.
Likely no. Although OSHA’s existing healthcare ETS and Cal/OSHA’s ETS both exempt employees who have had
COVID-19 and recovered within the past three months from certain circumstances, such as quarantine and testing
requirements after close contact exposures, the CDC still recommends that individuals who have had COVID-19
get vaccinated, including in an FAQ updated last week:
“Yes, you should be vaccinated regardless of whether you already had COVID-19 because: [r]esearch has not
yet shown how long you are protected from getting COVID-19 again after you recover from COVID-19[; and]
[v]accination helps protect you even if you have already had COVID-19. Evidence is emerging that people get
better protection by being fully vaccinated compared with having had COVID-19. One study showed that
unvaccinated people who already had COVID-19 are more than 2 times as likely than fully vaccinated people
to get COVID-19 again. If you were treated for COVID-19 with monoclonal antibodies or convalescent plasma,
you should wait 90 days before getting a COVID-19 vaccine. Talk to your doctor if you are unsure what
treatments you received or if you have more questions about getting a COVID-19 vaccine.”
See CDC FAQs About COVID-19 Vaccination (last updated Sept. 9, 2021). Since OSHA relies heavily on CDC guidance in
developing its own guidance and the prior ETS for healthcare, we expect much the same as it develops its new ETS.

Are retail establishments that include on-site pharmacies and/or that otherwise receive
Q. reimbursement from Medicare and Medicaid, covered by the President’s Executive Order for "hard"
vaccine mandates for healthcare businesses?
To the extent that a retail pharmacy or on-site medical clinic receives Medicare or Medicaid reimbursement or is
A. regulated by the Centers for Medicare & Medicaid Services (CMS), we think the pharmacy (but not necessarily the
entire retail establishment store) will fall under the Executive Order setting the hard vaccine mandate. First, the
President’s Path Out of the Pandemic: POTUS COVID-19 Action Plan (“Action Plan”) indicates the E.O. is intended to
cover staff beyond those involved in direct patient, resident, or client care: “[CMS] is taking action to require COVID-
19 vaccinations for workers in most healthcare settings that receive Medicare of Medicaid reimbursement,
including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This
action builds on the vaccination requirements for nursing facilities recently announced by CMS, and will apply to
nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff,
individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient,
resident, or client care.” See President Biden Path Out of the Pandemic: POTUS COVID-19 Action Plan (September
2021) (emphasis added).
Second, we have seen state/local authorities impose hard vaccine mandates that “divide up” pharmacies/clinics in
retail settings and make clear that the vaccine mandate does apply to that setting (although not necessarily the rest of
the retail store). For example, Washington Gov. Inslee signed a Proclamation that prohibits in part “[a]ny operator of
a Health Care Setting from permitting a Health Care Provider to engage in work for the operator as an employee,
contractor, or volunteer in their capacity as a Health Care Provider after October 18, 2021, if the Health Care Provider
has not been fully vaccinated against COVID-19 . . .” See Governor Inslee, “Proclamation 21-14.1 (COVID-19
Vaccination Requirement)” (August 20, 2021). The Proclamation defines “Health Care Setting” as “any public or
private setting that is primarily used for the delivery of in-person healthcare services to people, except as specifically
exempted []. If located at a facility that is primarily used for the delivery of health-care services, such as a hospital, then
the entire facility is a Health Care Setting. If located at a facility that is primarily used for another purpose, such as
a pharmacy within a grocery store, school nurse’s office, or vaccination clinic within a business establishment,
the Health Care Setting includes only the areas that are primarily used for the delivery of health care, but not the
other areas of the facility.” See id. (emphasis added). Specifically, the Proclamation states that Health Care Settings
include, for example, “[p]harmacies (not including the retail areas)[.]” See id. (emphasis added).
 Page 11 | Vaccine and Testing Mandates Q&A | Conn Maciel Carey LLP

As a boutique law firm focused on Workplace Safety and Labor & Employment Law, Conn Maciel Carey LLP has
been working with our clients since the beginning of this crises to develop customized COVID-19 Exposure
Control Plans. In most cases, we hold a series of conference calls with leadership, HR, safety, and operations after
which we provide a customized exposure control plan that will help protect employees and customers, and to
provide a line of defense against all of the regulatory and tort liability that is mounting every day. If you would
like help developing such a plan, please contact any of the attorneys at Conn Maciel Carey.

For additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 FAQ Page for an
extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory
related developments and guidance. Likewise, subscribe to our Employer Defense Report blog and OSHA Defense
Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the
workplace. Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely
and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.

Eric J. Conn Kara M. Maciel

Chair, OSHA • Workplace Safety Practice Chair, Labor • Employment Practice
Conn Maciel Carey LLP Conn Maciel Carey LLP
202-909-2737 202-380-5259
econn@connmaciel.com kmaciel@connmaciel.com