Welcome

Deadlines, Costs Raised in White House OSHA Covid Rule Meetings

Oct. 20, 2021, 6:29 PM

Employers and unions meeting with White House staffers want to know who pays for testing and how quickly businesses must comply with OSHA’s impending Covid-19 shot-or-test standard.

The White House’s Office of Information and Regulatory Affairs had scheduled 59 meetings about the rule through Thursday. The Biden administration hasn’t said when the standard will be issued.

The general parameters of the anticipated mandate are that it would require all U.S. businesses with 100 or more workers to require them to either be verifiably vaccinated against Covid or submit to testing for the virus at least once per week.

The sessions, done remotely, are the only official opportunity for anyone outside of the federal government to raise concerns with regulators about the proposed emergency temporary standard from the U.S. Occupational Safety and Health Administration. Unlike a normal rulemaking that often requires two rounds of public comments, there is no public comment period for an emergency temporary standard.

Representatives from several unions met jointly with OIRA Oct. 18. Among the labor groups were the United Steelworkers, the American Federation of Teachers, building trades unions, National Nurses United, and the United Food and Commercial Workers.

The unions called for the standard to go beyond vaccinations and testing and require additional mitigation efforts, such as face coverings, ventilation, and social distancing, said Rebecca Reindel, the AFL-CIO labor federation’s director of safety and health.

“We know that vaccines are safe and effective, but we also know that alone they are not sufficient,” she said.

The mitigation efforts are important because they can be put in place more quickly than vaccination and testing programs, Reindel said, adding that unions also want the standard to require that employers consult with workers when setting up compliance programs.

Earlier this year, OSHA had considered requiring mitigation efforts for most employers, but instead only mandated that health-care employers enact the measures.

Who Pays?

Reindel said the labor groups pointed out during the meetings that past OSHA rules require employers to pay for protective equipment and medical tests.

Employers also are concerned about how the vaccination and testing programs would be implemented, said Marc Freedman, the U.S. Chamber of Commerce’s vice president for employment policy, who met with the regulatory office on Oct. 15.

“The employer is going to be caught in the middle,” Freedman said.

OSHA will need to detail how to accomplish testing and how employers determine who will be counted toward the 100-employee threshold, he said.

Freedman told regulators the compliance deadlines should come after the holidays so employers won’t face a surge in business at the same time they’re being required to start up testing and vaccination programs.

Retail representatives told OIRA Oct. 18 they’re concerned with testing costs.

“We stressed that if the true goal is to incentivize vaccinations, then employers shouldn’t have to pay for the testing,” said Evan Armstrong, the Retail Industry Leaders Association’s vice president for workforce. “Given the massive costs that tests are likely to impose, we really urged them to push the costs on to the employee directly if they refused the vaccination.”

Large retailers calculated the costs of testing could be in the millions each week, Armstrong said.

More Time to Comply

Eric Conn, OSHA practice chair at Conn Maciel Carey LLP in Washington, said his clients on Oct. 18 asked OSHA to allow employers time to comply.

“The idea that we can flip a switch and have verified vaccination status of all workers, procure testing supplies, develop testing for results, deal with the flood of very likely bogus religious exemptions—it’s not just burdensome and expensive, it’s impossible,” Conn said.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

Edwin Egee, a spokesman for the National Retail Federation said his organization told OIRA the measure should be implemented after the 2021 holiday season.

“We already have a workforce shortage nationwide and we’ve had to employ younger individuals who tend to be less vaccinated than older individuals. With a million open jobs in retail, the vaccine mandate will open up more jobs during the busy holiday season.” He also said that if the goal of the measure is to encourage inoculation, than the cost of testing should be borne by those who refuse the shots.

The right-leaning Washington-based Ethics and Public Policy Center raised concerns Oct. 18 about the legality of the rule and whether political pressure was leading to regulatory shortcuts.

No Authority

“OSHA doesn’t have the authority to treat workers themselves as dangerous,” Roger Severino, a senior fellow with the center, said he told regulators.

OSHA is “going to require workers, en masse, to submit to medical interventions outside the workplace, which is something that has never happened. They basically don’t have authority do so,” he added.

Ethics and Public Policy Center policy analyst Rachel Morrison said she asked for a detailed economic justification for the rule.

Representatives from the White House, OSHA, the Department of Labor Office of the Solicitor, and the Small Business Administration have been listening during these sessions, but rarely ask questions and don’t disclose details of the draft standard.

The regulatory affairs office reviews most rules proposed by government agencies rule to determine if they are legally sound, have adequately considered implementation costs, and if the agency is addressing the concerns of people and businesses affected by the regulation.

To contact the reporters on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com; Ben Penn in Washington at bpenn@bloomberglaw.com; Fatima Hussein in Washington at fhussein@bloombergindustry.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.