September 16, 2021
Dear Mr. Secretary:
President Biden recently directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring employers with more than 100 workers to ensure their employees are vaccinated against COVID-19. If employees cannot or will not get vaccinated, the ETS will require employers to provide weekly testing for any employee that enters the employer’s facilities. The anticipated ETS has generated a large number of questions from businesses around the country.
I write today to share the many questions the Chamber has received. We hope OSHA will address these issues as it completes drafting the ETS. Additionally, we strongly urge OSHA to post supplemental guidance, ideally in an FAQ format, after issuing the ETS.
Below are questions that have been submitted to us from our members:
Questions related to coverage:
- How will the 100 employees be counted?
- How will the ETS address Professional Employer Organizations (PEO's) and staffing companies?
- Will the ETS apply to nonprofits?
- Will the ETS apply to workers who are full-time work from home / never come into an office or workplace?
- Will the ETS cover individual independent contractors that are engaged by a company with more than 100 employees?
- Would a local government with more than 100 employees, located in a state without an approved state plan, not subject to OSHA as a public entity, still be subject to the employer vaccine mandate?
- How will the ETS apply to unionized workplaces?
Questions related to implementation:
- Although the ETS will go into effect immediately, will it contain a grace period for employers to develop their programs and for employees to become vaccinated?
- Will employer obligations end at creating a vaccine policy in accordance with the ETS or will employer obligations extend to verifying that each employee complies with the vaccine workplace policy?
- How will OSHA resolve the conflict between the vaccine mandate and state laws that explicitly prohibit employers from requiring employees to be vaccinated?
- Could a state plan state adopt a stricter standard, i.e., one that eliminates the test-out option?
- If a state with an OSHA-approved state plan refuses to develop their own version or enforce the federal rule, how would OSHA respond?
Questions related to vaccinations:
- Is an employer in compliance when a worker has started a course of vaccinations or will compliance be achieved after a two-dose regime plus two weeks for the vaccine to reach full effectiveness (i.e. roughly six weeks)?
- Will there be any provision for employees who have natural immunity through previous COVID-19 infection?
- How will employers verify a request to opt out due to medical concerns or religious exemptions?
- How will businesses “ensure” that employees are vaccinated?
Questions related to testing:
- If an employee shows proof of a certified disability/religious accommodation as a reason to not get the vaccine, would they still need to be tested weekly?
- Will unvaccinated employees who work remotely be required to be tested weekly?
- What type of testing will be acceptable?
- Must the testing be done by a medical professional?
- What happens if the employer cannot get enough tests to do weekly?
- Will DOL proscribe how tests are to be administered?
- Who will cover the costs of testing? One estimate for PCR testing suggests a range of $80-140 for testing/processing, so this weekly testing could become a significant cost.
Employer options with respect to non-compliance:
- If an employee refuses to be vaccinated, does not have an exemption (medical or religious), and refuses a regular testing requirement, what should happen?
Questions related to providing leave:
- If an employer already provides paid leave / PTO, will this be sufficient?
- How will an employer verify the employee’s vaccine-related injury?
Questions related to enforcement:
- How will OSHA enforce this ETS?
- Will there be weekly reporting requirements to OSHA, potentially including internal documentation if OSHA requests it?
- Will there be some form of affirmative defense or safe harbor that employers can assert if they take certain steps in a good faith effort to comply with the ETS?
- Will the ETS ensure that employers are not subject to penalties for any violations that occur due to circumstances beyond the employer’s control?
- Will the Department consider less punitive fines than the $14,000 that has been reported publicly?
- Will fines be per employee or per location?
COVID-19 has presented an unprecedented crisis, and it has required many unprecedented actions. The U.S. Chamber has been unequivocal in our support for getting employees vaccinated, subject to the limited exemptions. We urge the Department to address the questions above to ensure that, should an ETS become enforceable, employer compliance will be as clear, simple, and cost-effective as possible.
Neil L. Bradley