by Phil Molé, MPH
On September 9, President Biden laid out a comprehensive plan to address the COVID-19 pandemic, including new requirements affecting millions of workers across the United States. Along with new vaccination mandates for healthcare workers, federal employees, and all contractors working with the federal government, Biden’s plan calls for OSHA to develop a new emergency temporary standard (ETS) that would require all employers with 100 or more employees to either ensure their workers are fully vaccinated or that they can demonstrate negative test results each week.
These new requirements, especially the planned ETS, will have a huge impact on many employees, employers and workplaces. Let’s take a closer look at the requirements, how they may affect you, and what happens next.
The Background
There have already been several major developments from OSHA related to COVID-19 in 2021. Near the beginning of the year, on January 21, President Biden issued An Executive Order on Protecting Worker Health and Safety. The EO mandated that the Department of Labor issue “revised guidance to employers on workplace safety during the COVID-19 pandemic” and consider whether emergency temporary workplace standards are necessary, including wearing masks in the workplace.
OSHA has updated its general COVID-19 guidance for all employers twice this year, first on January 29, and again on June 10, to include currently recognized best practices at preventing the spread of COVID. The most recent guidance includes a focus on protections of unvaccinated and otherwise at-risk workers, recommendations to encourage COVID-19 vaccinations (including time-off), and links to guidance with the most up-to-date content.
As we’ve blogged about previously, OSHA published a COVID-19 Healthcare ETS in the Federal Register on June 21, 2021. It went into effect immediately upon publication. Among other provisions, the healthcare ETS requires healthcare employers to develop and maintain an effective COVID-19 plan, which must be in writing for those employers who have more than 10 employees. The plan must establish a designated safety coordinator with authority to ensure compliance, and requires employers to conduct a workplace-specific hazard assessment. The ETS specifically requires that “non-managerial employees” be involved in the hazard assessment and plan development, and requires inclusion of specific plans and procedures to minimize risk of COVID-19 transmission to employees.
Of course, Biden’s original January 21 EO did not specify whether planned ETSs would target specific industry sectors, and many had anticipated that the federal government would issue wider, more generalized requirements for all employers.
The “Path Out of the Pandemic” Plan
On September 9, 2021, President Biden gave a televised address laying out the details of new plans to address the ongoing COVID-19 pandemic, especially stressing the need for closing the gap on COVID vaccinations. As of this writing, nearly 80 million Americans eligible for the vaccine have not received it, representing approximately 25% of eligible Americans. The “Path Out of the Pandemic” plan was published on the White House’s official site the same day, and lays out all of the planned measures by the federal government to boost vaccinations and reduce incidence rates of COVID-19.
According to the plan, the US government will require all federal branch workers and all contractors who do business with the federal government to be vaccinated. President Biden has already signed separate executive orders specifically pertaining to federal workers and to federal contractors to put these requirements into effect.
The plan also states that “the Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies.” This requirement would affect an estimated 17 million workers at over 50,000 health care providers.
However, the most far-reaching part of the plan is its mandate for OSHA to develop a new ETS that would effect many private-sector employers. As the Plan states:
“The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.”
In terms of both the wide applicability across sectors and the overall number of workers affected, the planned ETS is by far the most impactful of the measures described in the plan, so let’s take a look at what might happen from here.
What’s Next for the ETS?
It’s quite an understatement to point out that there are many unanswered questions about the planned ETS. Here are some, just for starters:
- What will the timeline be? Not only do we not know how quickly the ETS itself will appear, but also don’t know how long employers will have to comply with it once it does appear.
- What are the specific ways that OSHA will require employers to comply with the ETS?
- For example, will there be a documentation requirement, such as a completed checklist? Will there be training required for those overseeing compliance in the workplace? A communication requirement to tell employees about the requirements of the standard, and their options to either get fully vaccinated or get a weekly test?
- What allowances, if any, will employers be required to give employees in terms of time to get vaccinated or get their weekly test done? Will employers be required to cover any associated costs the employee incurs to meet those requirements?
- Related to the above question, how will OSHA enforce the mandate? How will they determine which employers to inspect, and what will enforcement officers look for when they arrive at the site?
- Will the ETS have other requirements in it, such as possible masking and social distancing measures?
Another big question, aside from the requirements of the ETS, will be whether the ETS itself will hold up to scrutiny and potential legal challenges. Here, it’s important to understand how an ETS differs from other OSHA regulations, and what the historical fate of earlier ETSs has been.
The normal rulemaking process for OSHA is to first develop a Notice of Proposed Rulemaking (NPRM) that is published in the Federal Register. That is followed by a public comment period, in which all stakeholders submit feedback to OSHA on aspects of the proposed regulation they either support or oppose, and the reasons for their position. In cases of proposed regulatory changes having a perceived far-reaching impact, such as for the NPRM published earlier this year to update the HazCom Standard, OSHA may also opt to have a public hearing to collect additional feedback. Then, OSHA sorts through all of that stakeholder input and uses it to write and publish a final rule in the Federal Register with a specific effective date. Regulations with multiple requirements with various degrees of difficulty may have a phased-in compliance timeline, in which different requirements go into effect at different times.
The 1970 Occupational Safety and Health Act enables OSHA to bypass the usual rulemaking process to create an ETS when there is “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” But the circumvention of the typical process and the reliance on a rationale of urgency have left ETSs more vulnerable to legal challenges than other OSHA regulations.
The fact is, most ETSs published by OSHA since the late 1970s have failed, including an ETS to regulate benzene in 1977 and another to regulate asbestos in 1983, neither of which survived court challenges. The COVID-19 Healthcare ETS issued by OSHA earlier this year is one of the few exceptions, possibly because its scope is limited.
While some labor advocates and workers have been asking for a broader OSHA ETS like the one now proposed and may welcome the rule when it appears, others including some elected officials have already announced their intention to challenge the planned ETS in court. As of this writing, OSHA and the Department of Labor have declined public media comments.
Only time will tell when the new ETS will appear, when it will go into effect, what its new requirements are, and whether it will fare better against potential court challenges than other ETS have done. Until then, it’s best to assume that the ETS is coming, and begin thinking about compliance strategies that make the most sense for your business.
Stay tuned for future updates on the ETS on this page!
Let VelocityEHS Help!
While there is a great deal of uncertainty about the planned COVID ETS, there is full certainty that VelocityEHS can help you. Whether compliance with the ETS will require inspections, better incident management tools, management of corrective actions, or better compliance management, our VelocityEHS Accelerate® Platform has capabilities that will help you meet your obligations and keep your workers safe.
As always, please feel free to contact us anytime to learn more.