The Energy Workforce and Technology Council’s HSE, Human Resources and Government Affairs committees hosted a townhall on December 17 to discuss the ongoing impacts of the U.S. Department of Labor’s Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) regarding a new mandatory COVID-19 vaccination policy.
Participants from more than 45 companies joined the townhall to listen to a breakdown of the ETS, engage with legal experts on what to expect in the coming weeks and have an open discussion centered around industry best practices. This townhall was the fourth in a series of meetings to help develop and disseminate best practice recommendations.
The session opened with several updates to the legal developments surrounding the ETS enforcement.
ETS Stay Update
At the time of the townhall, all enforcement activity around the ETS was effectively paused while a three-judge panel from the 6th Circuit (Cincinnati appeals court) heard the legal challenges to the OSHA ETS.
On December 17, the 6th Circuit Court dissolved the stay, meaning employers with more than 100 employees in the 29 states where federal OSHA has jurisdiction must comply with the ETS until further review. Though the Sixth Circuit lifted the stay, it has not decided the merits of the case, including whether the ETS preempts state or local laws that purport to restrict or impact an employer’s ability to mandate vaccination and/or testing requirements.
The case has been taken up by the Supreme Court, which will begin deliberations January 7 at 10 a.m. It is not yet know if the Supreme Court will permit the ETS to go into effect while they deliberate, so it is prudent to move forward operating under the assumption that the ETS will survive. The Council will provide real time updates as developments continue, including during the next best practices townhall on January 14.
OSHA has extended the comment period for the ETS to January 19 to allow stakeholders additional time to review the ETS and collect information and data necessary for comment. OHSA announced on December 27 that due to the final rule unable to be completed in the anticipated time frame, it is “withdrawing the non-recordkeeping portions of the healthcare ETS.”
On December 8, the Senate voted down a CRA vote called by Republicans by a 52-48 vote with Senators Joe Manchin and Jon Tester voting no. The symbolic vote, which the President could veto if it passed the House, seems to spell serious trouble for the stability of the mandate.
The Centers for Disease Control and Prevention updated its guidance, recommending people who test positive for COVID-19 need to isolate themselves for only five days if they don’t show symptoms. It also updated its recommended quarantine period for people exposed to the virus with unvaccinated people should quarantine for five days, followed by five days of “strict mask use.” People who have gotten their booster shot don’t need to quarantine after exposure but should wear a mask for the next 10 days.
Member Companies also had an opportunity to engage in an open conversation about their company’s best practices regarding COVID-19 reporting protocols. Several topics were discussed, including:
- Engaging local medical authorities who can provide third-party analysis for worker safety
- Examining the cost of routine testing to the employer and how to bulk purchase COVID-19 tests to drive down the cost
- Evaluating how the Omicron variant and travel would affect return to work post-holidays
- Sourcing COVID-19 tests and managing potential expiration dates
- Managing company-wide return to office protocols
- Reviewing attrition rates related to enforcement policies
The Council has formed a working group that will compile and submit industry comments for review by the Department of Labor during the ETS comment period, which ends on January 19. If you are interested in joining the working group, contact Director Government Affairs Maria Suarez.
Maria Suarez, Director Government Affairs, writes about industry-specific policies for the Energy Workforce & Technology Council. Click here to subscribe to the Council’s newsletter, which highlights sector-specific issues, best practices, Council activities and more.