Policy Matters Newsletter - November 5, 2021

 OSHA: From The Back Page To The Headlines. If asked in January of 2020 what exactly OSHA is and what it does within the Department of Labor, we would venture that the majority of PMN readers would not have a completely accurate answer at hand. That all changed with the onset of the COVID-19 pandemic. After the announcement of the vaccine mandate for government contractors in September of this year, OSHA is making even more headlines than it did during the preceding months of the pandemic. On Thursday, the White House, after holding numerous stakeholder meetings, finally released the text of the emergency temporary standard which goes into effect with its publication in the Federal Register on Friday, November 5.

Seyfarth’s comprehensive legal update on the substance of the ETS is worth a read, as it contains significant detail regarding the standard (hint: the ETS has numerous obligations outside of just the vaccine).  The White House also put out a helpful fact sheet on the ETS, and the DOL issued numerous FAQs providing additional guidance. Also, for those interested in some fantastic inside baseball, our very own Scott Hecker, Senior Counsel in our Washington D.C. Office, recently testified before the US House of Representatives Education & Labor Committee’s joint subcommittee. It is a fantastic read and listen.

Headline requirement: The ETS requires employers with 100 or more employees to implement a policy on vaccination ensuring their employees receive the final dose of the COVID-19 vaccine by January 4, 2022, or employees must begin showing weekly negative tests. Notably, pursuant to 29 CFR 1910.501(m)(2)(ii), “[e]mployers must comply with the requirements of this section . . . by January 4, 2022, but employees who have completed the entire primary vaccination by that date do not have to be tested, even if they have not yet completed the 2-week waiting period.”  To clarify, January 4 is the final dose date, not full vaccination date, which is typically two weeks after receiving the final dose.

Counting employees: For purposes of the 100-employee threshold, employers must count all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work.  Part-time employees count towards the company total, but independent contractors do not.

Wage and Hour: The biggest questions still weighing on employers’ minds are wage and hour concerns. The ETS and accompanying guidance address some outstanding wage hour issues, but not all. We remain hopeful that the Wage and Hour Division of the DOL will promptly issue substantive guidance, but for now, we know that the ETS requires employers to give employees (a) reasonable paid time at the employee’s regular rate for each primary vaccination dose (i.e., up to four hours for each dose) and (b) paid sick leave for employees’ reasonable recovery time due to side effects from each primary vaccination dose.  29 CFR 1910.501(f). We also know that, as anticipated, the rule provides that employers are not required to pay for tests or the costs associated with testing, but that does not preclude circumstances under which employers must pay, e.g., based on “other laws, regulations, or collective bargaining agreements or other collective negotiated agreements.”  See 29 CFR 1910.501(g). As an example, a state OSH plan may adopt more restrictive requirements, including requiring the employer to pay for testing. Stay tuned.

Competing deadlines: The OSHA ETS is not the only vaccine mandate in the game. When the President announced on September 9, 2021 that OSHA would issue the ETS for private employers, he also issued an executive order requiring vaccination for federal contractors and CMS. The White House ETS Fact sheet now explains that, “[t]o make it easy for businesses and workers to comply, the Administration is announcing today that the deadline for workers to receive their shots will be the same for the OSHA rule, the CMS rule, and the previously-announced federal contractor vaccination requirement, on January 4.”

Legal challenges: As we noted here, emergency temporary standards issued through OSHA have not enjoyed the same historical litigation success as other kinds of mandates, and Attorneys General from about half of the states have already pledged to challenge the law. Indeed, some Attorneys General have already sued to challenge executive orders issued by the administration in September requiring vaccines for employees at federal agencies.  The Arizona Attorney General just this week filed an amended complaint alleging that the federal government lacks the authority to require vaccinations and that the administration is discriminating against citizens and immigrants with work visas because undocumented immigrants aren’t required to get inoculated. Lawsuits are sure to tick up now that the ETS has been released. Indeed, a coalition of attorneys general led by Attorney General Lynn Fitch of Mississippi has already filed a legal challenge.

Preemption: The ETS expressly asserts that it preempts “and invalidate[s] any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.” So, for example, the ETS expressly preempts recent legislation in Arkansas and Governor Abbott’s executive order, both banning vaccine mandates. But, the ETS also expressly does not preempt generally applicable state or local requirements meant to protect public health, such as face coverings in indoor spaces, or that members of the public provide proof of vaccination or recent COVID-19 testing to enter restaurants, bars, or other public spaces, or perhaps most concerning for employers, local wage and hour / reimbursement requirements.

Oh boy, the penalties: OSHA will enforce the rule through inspections as it does with other workplace-related policies. Penalties can be up to $13,653 per violation, with an additional $13,653 per violation for failure to abate after the proscribed abatement date. Additionally, OSHA may fine employers up to $136,532 per violation for willful or repeated violations. The Build Back Better Act -- which we have discussed almost ad nauseam in this space -- should it pass, would increase penalties for serious violations (and failure to abate violations) to $70,000 and penalties for willful violations (and repeat violations) would increase from $136,530 to $700,000. Sticker shock.

EEOC Issues Updated Guidance On Religious Objections to Workplace COVID-19 Vaccine Requirements. The EEOC recently updated and expanded its guidance relating to the pandemic, adding a new section addressing religious objections to employer vaccine mandates.  As Seyfarth has reported, that updated guidance clarified the EEOC’s position on a number of important issues.  Specifically, that employees must inform their employers if they are requesting a religious exemption to its vaccine mandate. Employers should provide employees and job candidates with information about how to request an exemption. Employers should assume that exemption requests are based on sincerely held religious beliefs, but they may be asked to explain the religious nature of their belief. Employees’ sincerity is largely based on individual credibility, but employers should not assume an employee’s belief is insincere merely because some of the employee’s behaviors deviate from commonly followed tenets of the religion. The EEOC clarified that requiring an employer to bear more than a minimal cost to accommodate an employee’s religious beliefs is an “undue hardship” under Title VII. Those costs can include risk of spread of COVID-19 to the public or other employees, and an employer should consider the employee’s physical working conditions in making an assessment regarding whether an undue hardship exists. The EEOC has issued a template request form for employees seeking a religious exemption to vaccine mandates, which employers may find helpful.

Build Back Better: Heavy Promises, Light Results, To Date. After Tuesday night’s victory for Glenn Youngkin in Virginia, and the narrow victory for Phil Murphy in New Jersey, attention quickly reverted to Capitol Hill, highlighting the frustrating back-and-forth over the President’s build back better agenda. Paid leave is a prime example of the rigmarole anyone following this quagmire has experienced. First, the paid leave program was reduced from 12 weeks to four weeks; then it was completely removed when the President announced his renewed framework last week; then, on Wednesday of this week, house leaders announced that four weeks of paid leave was re-attached to the measure. Despite the announcement, there has been no indication that leaders in the House have conferred with a certain Senator from West Virginia. We Are Nowhere And It’s Now.

Labor Law Provisions That Remained In BBB.  Although the most recent proposed draft of the Build Back Better Act omitted newly defined violations of the National Labor Relations Act, like so-called “captive audience” meetings and permanent replacement of strikers, it still contains language concerning to employers on the labor front.  First, the punitive fines for violations of the NLRA remain in the most recent draft -- employers found to have committed unfair labor practices could be assessed fines of up to $50,000, and up to $100,000 if the violations included termination of an employee. Maximum penalties for employers whose violations of child labor law cause death would increase from $50,000 to $601,150, and maximum OSHA fines for willful or repeat violations would increase from $136,532 to $700,000.  Because the bill is advancing via the reconciliation process, it is anticipated that Republican lawmakers will challenge the enhanced financial penalties under the NLRA. And it remains unclear whether the Senate Parliamentarian will permit those provisions to proceed. The latest version of the bill also contains large budget increases for the NLRB, the DOL’s Wage and Hour Division, and the EEOC.

Gig-Economy Rise Prompts FTC Chief’s Call to Alter Antitrust Law. Federal Trade Commission Chair Lina Khan is considering legislation or joint guidance with the Department of Justice to extend to gig workers certain antitrust exemptions currently granted to traditional labor unions. Currently, antitrust laws arguably prohibit employees outside of a union from striking because it may be considered a collective effort to fix the price of labor in a given industry. Gig workers are typically independent contractors not granted certain rights under the law, including the right to overtime pay and the ability to unionize. Critics of Khan’s approach say that it would be ineffective because courts do not have to defer to guidance from the FTC or DOJ, and extending those exemptions could actually lead to anti-competitive results in which independent contractors in fact conspire to fix prices for their labor. Although Congress is currently considering six new antitrust bills, those are targeted at large tech companies and do not address gig workers. Khan hinted that her approach will likely be through guidance issued by the FTC in possible conjunction with the DOJ.  Exactly how far that guidance will go is difficult to predict.

SCOTUS Arguments Reflect Serious Federalism Concerns Over Texas Abortion Law. While SCOTUS decisions and arguments are not typically fodder for this newsletter, when SCOTUS happenings affect public policy, we feel obligated to address the issue. At issue was not the constitutionality of the Texas law, SB 8,  but rather whether anyone is allowed to sue to block the law, which precludes enforcement through a state or local governmental entity, but rather permits private Attorneys General to sue any person who performs, or assists in the performance of, an abortion after the sixth week of pregnancy. It was noted during oral arguments that if this legislative enforcement scheme -- which is likely in contravention of Planned Parenthood v. Casey’s undue burden standard -- is permitted to proceed, states across the country could start passing legislation employing similar enforcement schemes of all kinds of unconstitutional policies, see e.g., the Second Amendment.

As If The Vaccine Mandate Was Not Enough For OSHA. It is not just the vaccine mandate keeping OSHA occupied. As Seyfarth noted here, OSHA has prioritized issuing and enforcing a heat illness standard for indoor and outdoor workplaces. As OSHA continues to focus on heat, it has begun the process to issue a heat illness standard by providing an advance notice of proposed rulemaking for the proposed standard. Additionally, as Seyfarth noted here, it announced its  intention to enforce its emergency temporary standards against state OSH plans that refuse to comply with the ETS issued in June. OHSA issued a general warning -- a warning that was really geared toward Arizona, South Carolina, and Utah -- on October 19, 2021 that they risk a federal takeover of their worker safety programs unless they adopt an emergency temporary standard protecting health-care workers from COVID-19 issued in June.

Finally, as Seyfarth noted here, the Senate finally voted to confirm Doug Parker to serve as Assistant Secretary of the Occupational Safety and Health Administration (OSHA). We here at the PMN podcasted on Mr. Parker’s nomination back in July.

States Pass Legislation Or Orders Conflicting With Federal Vaccine Mandate. By now, most PMN readers are aware of Texas Governor Greg Abbott’s order purporting to preclude Texas businesses from requiring the COVID-19 vaccination. The Governor has also pledged to convert this order into legislation upon the next legislative session in Texas. Governor Ron Desantis of Florida has called for a special legislative session to consider similar legislation. Arkansas recently enacted a measure that would require employers to allow workers to opt out of COVID-19 vaccine requirements if they’re tested weekly or can prove they have antibodies for the virus. That bill is in direct response to the federal vaccine mandate, and is expressly entitled “An Act to prohibit the state from mandating a vaccine or immunization from Coronavirus 2019. Similarly, West Virginia recently enacted HB 335 that broadens the category of medical reasons for which an employee may be exempted from a COVID vaccine mandate. Like the Texas EO and the Arkansas law, there is no mention of an undue hardship analysis whereby the rules would not apply in certain circumstances. Calls for special legislative sessions to counter vaccine requirements “have also been called” in Wyoming, Kansas and South Dakota.

But, as noted above, the Federal ETS expressly preempts state and local mandates that purport to prohibits vaccine mandates. We will have to see how the preemption issued works out in court. Stay tuned.