OSHA's COVID 19 Vaccine Mandate Emergency Temporary Standard

OSHA’s
COVID‐19 Vaccine Mandate
Emergency Temporary Standard
September 17, 2021
Conn Maciel Carey LLP’s COVID‐19 Task Force
© 2021 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED ATTORNEY ADVERTISING WWW.CONNMACIEL.COM
Eric J. Conn
econn@connmaciel.com / 202.909.2737
ERIC J. CONN is Chair of the OSHA • Workplace Safety Practice
Group at Conn Maciel Carey, where he focuses his practice on all
aspects of occupational safety & health law:
 Represents employers in inspections, investigations &
enforcement actions involving OSHA, CSB, MSHA, & EPA
 Responds to and manages investigations of catastrophic
industrial, construction, and manufacturing workplace
accidents, including explosions and chemical releases
 Handles all aspects of OSHA litigation, from criminal
prosecutions to appeals of citations
 Writes and speaks regularly on safety and health law issues
 OSHA Co‐Chair of the firm’s COVID‐19 Task Force
© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2021 C ATTORNEY ADVERTISING WWW.CONNMACIEL.COM
Kara M. Maciel
kmaciel@connmaciel.com • 202.909.2730
Kara M. Maciel is a founding partner of Conn Maciel Carey LLP
and Chair of the Labor • Employment Practice in representing
employers in all aspects of the employment relationship:
• Defends employers in litigation at both the federal and state
levels, including matters related to ADA, FLSA, FMLA, Title VII,
and affirmative action/OFCCP regulations
• Counsels employers on compliance w/ fed and state law, including
issues of hiring, discipline, internal investigations, and termination
• Advises unionized and non‐unionized workplaces regarding the
employer’s rights under the National Labor Relations Act
• Labor & Employment Co‐Chair of CMC’s COVID‐19 Task Force
Aaron R. Gelb
agelb@connmaciel.com / 312.868.0294
AARON R. GELB leads the firm’s Midwest OSHA practice from Conn
Maciel Carey LLP’s Chicago office:
• Aaron advises employers through inspections and enforcement
actions involving fed. OSHA and state OSH programs, while
managing the full range of litigation against OSHA.
• Aaron regularly handles matters in person (and virtually) throughout
Region 5 (IL, IN, MI, MN & OH) and beyond, with a focus on the 5 IL
Area Offices (Chicago North, Chicago South, Naperville, Peoria and
Fairview Heights).
• During the pandemic, Aaron has defended a Zoom inspection, 2 drone
inspections and the 1st in‐person factory inspection since March ‘20
Agenda
• Pres. Biden’s latest
directive to OSHA
re: vaccine‐mandates
• What to expect from
OSHA’s COVID‐19 ETS
• FAQs about the ETS

Path out of the Pandemic
President Biden’s COVID‐19 Action Plan

Path Out of the Pandemic: COVID Action Plan
• Sept. 9th – Pres. Biden introduced his 6‐prong plan to
combat COVID‐19 through the Fall of 2021
1. Vaccinate the unvaccinated
2. Protect the vaccinated from the unvaccinated
3. Keep schools safely open
4. Increase testing & mask requirements
5. Protect economic recovery
6. Improve care for those who become
infected w/ COVID‐19 7

Vaccinating the Unvaccinated
5 Goals within the Vaccination Prong:
1. “Hard” vaccine mandate for fed gov’t employees and contractors
2. “Hard” vaccine mandate for healthcare workers at facilities receiving
Medicare/Medicaid reimbursement
3. “Hard” vaccine mandate for educators in
Head Start programs (encourages
governors to set mandates for schools)
4. Encouraged entertainment venues
to require patrons to be vaccinated
or show a negative test for entry
5. “Soft” vaccine mandate for
employers w/ 100+ employees,
via another Fed OSHA COVID‐19 Emergency Temporary Standard 8

What Will Be Required?
Covered employers will be required to:
• Provide paid time off to employees to get vaccinated and
recover from ill‐effects of vaccine
• Mandate that employees either:
‒ Get fully vaccinated; or
‒ Produce a negative test result
at least weekly before going in
• OSHA may try to use this
opportunity to revisit its
June decision to limit the
more comprehensive ETS to healthcare only 9

Who Pays?
• Biden’s announcement and Action Plan do not say whether it is
the employer or employee who is responsible to pay for testing,
but there are several reasons to expect it will be on employees:
Clues in the Language of Biden’s Action Plan
• Most elements in the Plan speak in terms of employers’ affirmative
duties (e.g. “require employers...to provide paid time off for time it
takes workers to get vaccinated….”), but for testing it says: “workers
who remain unvaccinated to produce a negative test result….”
• The Plan could have talked of employers “conducting” or
“providing” testing, but it focuses on employees’ producing the
negative test result
10

Who Pays?
Biden’s Tone – Anti‐Unvaccinated
• Biden’s tone, when announcing the ETS, was pretty aggressive:
“We’ve made vaccinations free, safe and convenient. The vaccine is FDA
approved. Over 200M Americans have gotten at least 1 shot. We’ve been
patient, but our patience is wearing thin. Your refusal has cost all of us.”
• It follows that Biden intends for it to be painful to refuse the
vaccine; it would undermine
the purpose if anti‐vax workers
had too easy an off‐ramp from
getting vaccinated (i.e., an
alternative that costs them
nothing and gets them paid
for time not working) 11

Why Employers Likely Have to Pay
• OSHA’s natural instinct is to burden employers, not employees
• Pressure from unions (on the most union‐friendly DOL in memory)
• Biden really wants hard vaccine mandates, and making
employers pay may cause employers to voluntarily
drop the testing option
• Strongest argument for employers paying is
the high cost of testing – more manageable
for employers than employees
• NOTE: If testing provided as accommodation
(for bona fide medical or religious reasons),
employer will almost surely have to pay 12

Who is Covered?
• Employers w/ 100+ employees (unless under a more stringent
rule; e.g., hard vaccine mandate for healthcare or fed contractors)
• Employee count likely company‐wide, but justification for either:
By Establishment –
‒ Significant outbreaks only occur where many people are present
‒ Most recent OSHA reg impacted by employee count (E‐Recordkeeping)
is based on # at each establishment
Enterprise‐wide # –
‒ As a public health initiative more so than a traditional workplace
safety reg, focus is likely on largest possible # of workers
‒ Other reg exemptions based on employer count company‐wide
(e.g., Injury and Illness Recordkeeping) 13

What About Remote Workers?
Will the mandate apply to those who telework/work remotely?
• If employees solely telework, likely that the mandate would not
apply to these employees
• BUT if employees telework 85% of the time and come into office
15% of the time, mandate of vaccination or testing will apply
• If employee works remotely – does not come into the facility – but

interfaces w/ the public as part of their job, mandate would still
apply (e.g., remote salespeople, drivers, electricians/repair/
maintenance personnel, employees attending conferences/meetings
w/ clients, etc.)
14
What about Employers in State Plan States?
• OSH Act: “State Plans are required to have an ETS that is at
least as effective as [one] issued by federal OSHA 30 days
following publication.”
• OSHA required State Plans
to adopt substantially similar
COVID‐19 ETS for healthcare
w/in 30 days of issuance
• But, State OSH Plans have their
own legal/regulatory processes to follow
• And states can be more restrictive than Fed OSHA; e.g.
Cal/OSHA employee testing requirements for employers 15

Availability and Types of Testing
• Plan includes initiatives to make testing more accessible/affordable:
o Acquired ≈ $2B in rapid POC and OTC at‐home tests for individual use
o Certain retailers agreed to sell at‐home tests at cost for several months
o Exercised authority under the Defense Production Act to ensure
sustained COVID‐19 test manufacturing
• OSHA may exercise enforcement discretion based on testing
availability (e.g., relaxing respirator requirements in 2020)
• Permissible form of test likely to include both PCR and Rapid Antigen
o OSHA’s Healthcare ETS defines “COVID‐19 Test” broadly to include PCR or
Rapid Antigen tests approved by FDA or authorized by an EUA
o Biden’s new Action Plan also emphasizes importance of rapid tests 16

Documentation to Verify
Vaccination Status or Test Results
• Expect ETS to require some form of documentation to demonstrate
compliance (i.e., verification of vaccination status or negative tests)
• Action Plan: Unvaccinated workers req’d to “produce negative
test result weekly before coming to work.”
• Likely flexible as to what form (see Preamble to Healthcare ETS)
“With regard to determining employees’ vaccination status, there are a
number of ways employers could approach this. E.g., small employers
may know all employees are already vaccinated b/c 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 b/c they or their agents … 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.” 17

Documentation to Verify
Vaccination Status or Test Results
• In practice, this could mean employers do 1 of the following:
a) Make a copy or take a photo of the vaccination card and lab/home test result;
b) Develop a self‐attestation form to be completed/signed by employees
affirming vaccination status (w/ date(s) and type of vaccine) or a negative
test result (w/ date and type of test); or
c) Review records or ask questions and record info on a log or matrix
• EEOC permits collecting this data BUT must be kept confidential
and kept separate from personnel files
• The records may be covered by OSHA’s Employee Medical Record
regulation requiring retention for term of employment + 30 years
18

Religious & Medical
Exemptions/Accommodations
• Per EEOC, employers should ordinarily presume employee’s request
for religious accommodation is based on a “sincerely held religious
belief” unless there exists an objective basis to question the sincerity
─ Personal anti‐vaccination positions generally will not be sufficient to
establish a sufficient sincerely held religious belief
• Employers must provide a reasonable accommodation, unless it
would pose an undue hardship under Title VII or the ADA
• Undue hardship standard
─ Under Title VII is “more than de minimis cost/burden on employer”
─ Under ADA is “significant difficulty or expense”
19
Boosters and Natural Immunity
• Will ETS require a booster shot to be considered “fully vaccinated”?
─ Unlikely ‐ CDC has not updated its definition of fully vaccinated for boosters
─ Could change if CDC updates its guidance and/or if FDA approves/
recommends boosters (just declined to do so earlier this week)
─ Either way, if employee gets a booster, documentation of the booster
should also be maintained as part of records of vaccination status
• Will the new ETS exempt workers w/ natural antibody immunity
(i.e., employees who have been infected and recovered)?
─ Unlikely, at least at this time, b/c CDC recommends that individuals who
have had COVID‐19 still get vaccinated
─ OSHA has relied heavily on CDC guidance in developing its own guidance
and the prior COVID‐19 ETS for Healthcare
─ But Healthcare ETS does recognize natural immunity in some contexts
20
Timing for OSHA Emergency Rulemaking
• OSHA’s COVID‐19 ETS for Healthcare:
o Jan. 21 – EO directing OSHA to issue an ETS by March 15th
o April 27 – Proposed ETS delivered to OMB (14 weeks after EO)
o 51 stakeholder meetings w/ OIRA/OMB over 8 weeks
o June 21 – Final ETS published in the Fed. Register (5 months total)
• New Vaccine‐related ETS expected to be simpler/quicker:
o Pres. Biden calls for ETS to issue “in the coming weeks”
o But, employers are already acting just based on Pres. Biden’s
announcement, and OSHA knows its legal authority is uncertain
o Expect 8‐12 weeks to deliver to OMB and 2‐4 weeks at OMB (i.e.,
Final Rule Dec. 2021/Jan. 2022) w/ 6 weeks to get vaccinated 21

Legal Challenges
Industry, Labor, State AGs all gearing up for legal challenges:
1. ETS issued in June directed only to healthcare sector, OSHA signaled
that COVID‐19 did not present a grave danger to all workplaces
2. New ETS calls into question necessity of prior ETS, or prior ETS
demonstrates lack of necessity of the new ETS (b/c the prior ETS did
not include a vaccine mandate)
3. Fed Executive does not have authority to mandate vaccinations
4. This is a public health initiative masked as an OSHA Rule
5. Arbitrary and capricious to tie mandate to number of employees
rather than nature of the work and work environment
First challenge to Biden’s Action Plan filed by Arizona AG earlier
this week ‐ Unconstitutional under 5th and 14th Amendments 22

What Can Employers Do?
• CMC organized a diverse coalition of employers and trade groups to
participate in OSHA’s initial COVID‐19 emergency rulemaking
• We submitted written comments to OSHA and OMB and participated in
several stakeholder meetings w/ OSHA & OIRA
• We continue to advocate to improve that
ETS and obtain favorable guidance (e.g.,
exclude retailers that administer vaccines)
• We are doing the same for this new
ETS to ensure industry’s voice is
heard as OSHA sets the scope,
determines who pays for testing,
decides what documentation is
required and how long it must be retained, etc.
Conn Maciel Carey
COVID‐19 Task
Force Resources
24
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© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2021 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED ATTORNEY ADVERTISING WWW.CONNMACIEL.COM

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

• If employee works remotely – does not come into the facility – but

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

© 2020 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED

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