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ASA Responds to OSHA’s Employer Vaccine Mandate

On September 9th, President Biden issued a new plan entitled “Path of the Pandemic,” which includes a six-pronged, comprehensive national strategy to combat the surge of COVID-19 variants, with the primary goal of vaccinating the unvaccinated.  One prong of the plan would entail OSHA issuing an Emergency Temporary Standard (ETS) that will require all employers with 100+ employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.  OSHA is currently developing this 2nd ETS and the Agency does not have to follow the Administrative Procedure Act, meaning there is not an opportunity for a formal public notice-and-comment period.

However, we believe it is very important for the construction industry to engage on this issue quickly, as we did with the 1st COVID ETS.  Therefore, we sent a letter to James Frederick, OSHA Deputy Assistant Secretary highlighting the Construction Industry Safety Coalition (CISC)’s COVID-19 prevention efforts to date, which states the construction industry is low-risk for COVID-19, and raises issues of concern, including Workforce Shortages, Employer and Employee Obligations for Vaccinations and Testing, Paperwork Burdens, Recordability of Adverse Reactions to the COVID-19 Vaccine, Cost of Paid Time Off for Vaccinations and Adverse Reactions, and Availability of Testing Kits. ASA is a CISC long-standing member.

We expect a response from OSHA letting us know that the ETS process does not contemplate public input prior to promulgation of the standard and that OSHA will not have time to process comments or questions prior to issuing the ETS.  However, the ETS does serve as a proposed rule and ASA, along with the CISC, will likely, again, need to submit comments for the record once we see what is in the final rule, which we expect to be issued in approximately 6 to 8 weeks.

OSHA has been silent since they are drafting this recent ETS and they did hold outreach calls immediately following the President’s announcement on September 9th, but warned there would be no further sessions and no solicitation of public comments.  Finally, federal contractors have until December 8th to be fully vaccinated per the President’s plan.