The Energy Workforce and Technology Council’s HSE, HR and Government Affairs committees hosted a townhall on November 19 to discuss the impacts of the OSHA Emergency Temporary Standard (ETS) regarding a new mandatory COVID-19 vaccination policy.
Participants from more than 75 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 third in a series of meetings to help develop and disseminate best practice recommendations.
The session opened up with several updates to the legal developments surrounding the ETS enforcement.
Republican attorneys general in at least 26 states filed lawsuits against the vaccine and testing requirements. In total, 34 cases were filed in all 12 regional circuit courts. The U.S. Court of Appeals for the 5th Circuit halted the ETS requirements on November 6 and on November 12 reaffirmed its stay of the ETS. A three-judge panel from the 6th Circuit (Cincinnati appeals court) will now be randomly assigned to hear the legal challenges to the OSHA ETS.
Currently, all enforcement activity around the ETS is effectively paused amid the proceedings. The judges of the 6th Circuit Court could issue a ruling before the January 4 deadline through an extremely expedited review. It is expected that the decision could be appealed to the U.S. Supreme Court.
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has extended the comment period for the ETS to January 19, 2022. OSHA extended the comment period by 45 days to allow stakeholders additional time to review the ETS and collect information and data necessary for comment.
Given this announcement by OSHA, it is now clear there is no scenario where enforcement of the mandate could begin before the close of that comment period (assuming the courts lift the stay that is currently in effect). Additionally, there is now an effort that is gaining traction by Republicans in both the House and Senate to withhold support for a continuing resolution to fund the government unless it includes provisions to block enforcement of this potential mandate.
Several labor unions have sued the Biden Administration in federal appeals courts to expand the COVID-19 business vaccine mandates and cover smaller businesses (those with less than 100 employees). Texas Attorney General Ken Paxton is suing the Biden Administration over its recent CMS mandate requiring health workers to receive the COVID-19 vaccine. The new commander of the Oklahoma National Guard has declared, on behalf of the governor, that the organization will not enforce the Defense Department’s COVID-19 vaccine mandate on its troops.
OSHA has confirmed it will provide all necessary documents and manpower to aid companies in their compliance efforts.
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 discussed included:
- Developing methods to facilitate company-wide testing of unvaccinated employees
- Developing a protocol to adequately keep a roster of employee COVID-19 vaccination status that is HIPAA compliant
- Capturing and properly document testing results of unvaccinated employees
- Methods of increasing the vaccination rates of employees in the field through monetary and PTO incentives
- Examining the cost of routine testing to the employer and how to bulk purchase COVID-19 tests to drive down the cost
- Methods of how to handle a vaccine requirement with new hires
- Evaluating how to set up a monitored testing scheme for remote employees
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.
Phillip DeBauche, Director, Environmental and Technical, writes about the Council’s environmental and HSE efforts. Click here to subscribe to the Council’s newsletter, which highlights industry practices, workforce development, Council activities and more.