Friday, Eldredge & Clark is a member of the Employment Law Alliance (ELA), the world's largest group of labor and employment law firms. Friday Firm partner, Daniel Herrington, is a member of the ELA Occupational Safety and Health law group. On October 20, 2021, Dan participated, along with other members of ELA OSH law group, in a meeting with the federal Office of Information and Regulatory Affairs (OIRA). This division within the Office of Management and the Budget is responsible for review of the OSHA ETS that will require employers of 100 or more employees to require employees to be vaccinated or to be tested weekly. Representatives of OIRA, OSHA, the DOL Office of Solicitor, and Office of Policy participated in the call.
Dan, along with other members of the ELA OSH law group, expressed concerns about the OSHA ETS held by many of our clients and asked questions in the hopes that the federal government would take those questions and concerns into account in the final review and drafting of the OSHA ETS. For example, the group asked OSHA to explain the rationale for the 100-employee threshold for employer coverage and to clarify how that number would be calculated. A related question was how the 100-employee threshold for employer coverage would be calculated. Another question along these lines was whether the 100-employee threshold would apply to workplaces in different states, some of which have state occupational safety and health plans and others where employers are exclusively within federal jurisdiction for safety and health.
Dan asked OSHA to address the various issues that would come up in the administration of a testing program, such as what tests would be acceptable to OSHA and who would bear the cost of testing. Dan also asked OSHA to address the potential of mass employee refusal to comply with employers’ rules intended to implement the OSHA ETS. Other members expressed concern that OSHA should coordinate with the National Labor Relations Board in advance of promulgating this Emergency Temporary Standard. Failure to do so could lead to possible unfair labor practice charges as employers sought to comply with what is anticipated to be short deadlines for compliance once the ETS is issued. ELA also asked OSHA to coordinate with other branches of the government, including the EEOC and the Wage Hour Division of the Department of Labor, to solicit those agencies’ input so that the ETS is fully coordinated within the federal government. Otherwise, there is a risk employers are whipsawed by conflicting positions within these regulatory bodies. For example, there could be conflict between what OSHA views as a legitimate religious accommodation request and what the EEOC considers to be evidence of a sincerely held religious belief. There could also be conflicts between what OSHA and the EEOC consider reasonable accommodations of those religious beliefs and disputes over what is an undue burden on the employer. The group also noted the apparent conflict between the anticipated ETS and various state laws protecting that deal with public health, including state laws the use of lawful products or new statutes specifically passed by state legislatures in anticipation of the OSHA ETS.
Again, this was a listening session, and the ELA OSH law group received no feedback or responses to those questions during the call. The point of the call was to express those concerns to OSHA so that they may be addressed in the final Emergency Temporary Standard. Information about the listening session can be found at www.reginfo.gov.
Our labor and employment attorneys, along with our health care lawyers and other counsel in the firm, are doing our best to stay abreast of this rapidly evolving area of the law. This alert is not intended to constitute legal advice. As we navigate these uncharted waters, we encourage you to contact one of our attorneys for more information.
Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.