Before the Occupational Safety and Health Administration can issue the planned emergency temporary standard (ETS) mandating vaccinations for all workers at employers with 100 or more employees, it must first navigate through numerous requirements under the Occupational Safety and Health Act.
Now that the Department of Labor has announced that the agency submitted the initial text of the ETS to the Office of Management and Budget, it appears that issuance of the ETS is imminent.
When the ETS is issued, among the many requirements, OSHA will need to provide a statement of reasons for its standard, must explain why the standard is “reasonably necessary or appropriate,” and must show how the ETS is necessary to protect employees from “grave danger.” Further, OSHA must show that the ETS is both economically and technologically feasible.
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OSHA already has laid much of the groundwork for the proposed ETS in its June health-care industry Covid-19 ETS. But many questions remain for the broadly scoped ETS on vaccines, and the legal viability of the ETS depends on whether OSHA is able to adequately answer those questions.
In addition to the legal requirements, to fulfill President Biden’s stated goal of reducing the number of unvaccinated Americans, OSHA’s ETS needs to be workable for both large and small employers and must actually encourage vaccination of employees.
Here are some questions OSHA is likely grappling with as it finalizes the proposed vaccine mandate.
One question OSHA is no doubt working to address is how the proposed “test-out” option to avoid vaccination will protect workers from a grave danger and how the option will increase vaccination rates.
OSHA will likely have to show not only that a grave danger exists but also that the ETS will actually reduce the risk of Covid-19 infection. The test-out option to avoid vaccinations poses a few questions; most fundamentally, does allowing workers to test out of vaccines actually protect workers from a grave danger?
Presumably, the test-out option will permit unvaccinated workers into the workplace. If so, OSHA will likely need to answer how this option reduces the risk to vaccinated and unvaccinated workers, such as:
- Do weekly tests reduce or eliminate hazards to other workers? Will more frequent testing be required?
- Do unvaccinated workers who are tested weekly pose a risk to other unvaccinated workers or to vaccinated workers? Put another way, are workers who work around unvaccinated workers who have tested negative seven days prior no longer exposed to a grave danger of exposure to Covid-19?
- What about individuals who are at an increased risk of Covid-19 because of age or comorbidities? Are they no longer exposed to grave danger if they work near an unvaccinated worker who tested out of vaccination seven days prior?
Similarly, for a grave-danger showing, do all workplaces pose a grave danger? Will low community spread be factored into whether a grave danger of spread exists at a workplace? Will OSHA consider workplaces that have seen no work-related spread of Covid-19 to be in the same category of workplaces that have seen a large number of work-related cases?
Economic and Technological Feasibility
As noted, baked into the requirement that an OSHA standard be reasonably necessary or appropriate is the requirement that the standard be feasible, both economically and technologically.
Technologically feasible generally means that the typical employer can comply with the standard. Economically feasible generally means that the costs to comply do not threaten massive dislocation to an industry or threaten its existence. At least one court has held that a standard is not infeasible simply because it is financially burdensome, or even because it threatens the survival of some companies within an industry.
Against this feasibility backdrop, possibly the main question for OSHA and employers will be whether enough Covid-19 tests will be available for employees in a timely fashion.
Part of this analysis will hinge on what type of testing will be permitted—will OSHA require tests administered by a health-care provider or third party, or will OSHA allow at-home rapid tests? Note that the Biden administration’s recent announcement of a $1 billion purchase of rapid at-home Covid-19 tests might suggest that at-home tests could be an option under the standard.
To meet the feasibility requirement of the ETS, OSHA is likely examining the following questions:
- What is the widespread availability of testing resources, including in rural areas where many large worker populations exist?
- What if tests are not available? Will untested and unvaccinated workers be permitted to work? How does an employer or an employee establish that tests are unavailable? What if the unavailability of tests leads to worker shortages and facility shutdowns?
- If an employee is unable or unwilling to get tested, should the employee be terminated, or will the employer be required to provide paid leave for the employee?
- If paid leave is available, will this encourage employees to get vaccinated?
- Who will bear the costs of such testing, and if the employer bears the cost, will this encourage or discourage vaccination?
OSHA’s challenge in drafting the planned ETS is formidable. OSHA must craft a standard that is workable for all types of employers in all areas of the country, and must do so within the constantly changing environment of the Covid-19 pandemic.
Hopefully, OSHA will fashion a clear but flexible standard that will result in increased worker vaccination rates and increased worker health and safety.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owner.
Charlie Morgan is a partner in Alston & Bird’s Labor & Employment group, where he represents employers in all aspects of disputes, lawsuits, and investigations regarding employees, including employment litigation, occupational safety and health, internal investigations, and union matters.