OSHA’s Upcoming Regulations Under Biden’s COVID-19 Plan:
Anticipated Questions and Answers By MEREDITH J. MARONEY
religious schools, etc. Id. In Tennessee, for example, TOSHA’s treatment of religious institutions is consistent with OSHA’s treatment of religious institutions. This is because TOSHA can only provide equal or greater protections for workers than OSHA, not fewer. TOSHA only provides worker exemptions to federal government employees, domestic workers, certain farm workers, and workers who are covered under federal regulations (railroad, coal miners, and atomic energy workers). Question 3: Who is an “employee” under OSHA? How will the threshold of 100 or more employees be counted under the ETS?
President Biden announced his Covid-19 Plan on September 9, 2021. As part of that plan, the Biden Administration tasked OSHA with promulgating an Emergency Temporary Standard (“ETS”) to help implement this plan. This announcement and the upcoming ETS have sparked questions across the country. The following are answers to anticipated questions pertaining to OSHA’s upcoming ETS. Please note that the ETS is still developing and subject to further revision and interpretation. Question 1: Will the ETS that Biden ordered OSHA to develop apply to state and local government employers? Yes, if the state has an OSHA-approved state plan. OSHA does not cover state and local government employers. But, 28 states and territories have OSHA-approved plans that regulate state and local government employers. For example, Tennessee is regulated by TOSHA, which is Tennessee’s OSHA-sponsored program. TOSHA does cover state and local government employers. This means that Tennessee local and state government employers and employees have OSHA protections through TOSHA. Once OSHA has issued its ETS, TOSHA will have 15-30 days to either adopt OSHA’s ETS or create “just-as-effective” measures. 29 C.F.R. § 1953.5(b)(1). In effect, local and state government employees in Tennessee would have to be vaccinated or produce a negative Covid-19 test weekly (at a minimum) within 15-30 days of OSHA releasing its ETS to comply with OSHA’s ETS or any “just-as-effective” measures implemented by TOSHA. However, OSHA-approved state plans do not have to implement monetary penalties as enforcement measures, but they can use “equitable remedies” instead. 29 C.F.R. § 1956.11(c) (2)(x). Because of this, it will be important to monitor how state and local government employers could be potentially penalized for violating the ETS in states with OSHA-approved state plans. Question 2: Does OSHA apply to a religious institution (ex: religious schools, churches) such that it will have to comply with Biden’s ordered OSHA ETS? Likely yes. OSHA affects private sector employers and workers whether directly or indirectly through an OSHA-approved state plan. OSHA covers religious institutions. 29 C.F.R. § 1975.4(c). The only exemptions are for employees who perform religious services, like ministers or individuals who participate in a religious ceremony (ex: individuals who play an instrument or collect an offering as part of a religious ceremony). Id. But, secular employees are covered under OSHA. Id. Secular employees would include administrative assistants, church secretaries, janitorial staff, teachers at religious schools, administrators at 40
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This is unclear. Under OSHA, the definition of “employee” is expansive. An employee is defined as “an employee of an employer who is employed in a business of his employer which affects commerce.” 29 U.S.C.S. § 652(6). The Department of Labor and OSHA conducted a phone call on September 10, 2021, to answer questions regarding the upcoming ETS. They indicated that employees will be counted on a per employer basis, not per location. This means that if a business has less than 100 employees at each of its locations, they still will be required to comply with the ETS if the business has 100 or more employees total. OSHA counts certain workers as employees within its statutory scheme, including part-time employees, employees from temporary help services, employees from employee leasing services, and employees from personnel supply services. This could indicate that “employee” will be broadly interpreted like the definition suggests. Once OSHA releases its ETS, it may further specify who counts as an “employee.” It is important to remember that OSHA-approved state plans must be consistent with OSHA, so if these workers are included as an employee in the ETS, they will likely count as an employee under each OSHAapproved state plan’s guidance that is released 15-30 days later. Question 4: Do existing OSHA statutes, regulations, or authority allow for employees to claim a religious or disability exemption to an OSHA standard similar to Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act? How will this affect vaccine and testing mandates? It is expected that the OSHA ETS will take into account an employer’s obligations under the ADA and Title VII. Therefore, the OSHA ETS will likely track the accommodation requirements under the ADA and Title VII. This means that OSHA-approved state plans will also likely track the accommodation requirements under the ADA and Title VII by virtue of its ability to give equal or more coverage and protections to workers compared to OSHA. Under the ADA, an employer must show an undue hardship if the employer wishes to deny an employee’s accommodation request. 29 C.F.R. § 1630.15(d). Thus, employers likely will have to accommodate an employee who qualifies under the ADA. Additionally, under Title VII, employers must also accommodate employees who request a religious accommodation. But, if the accommodation rises above a “de minimis” standard, then the employer can refuse to accommodate the employee’s request as an undue hardship. Trans World Airlines v. Hardison, 432 U.S. 63 (1977). For example, an employer may be able to cite workplace safety as going beyond the “de minimis” standard and being burdensome for the employer. Question 5: Will OSHA’s ETS apply to the public school system? Yes, for public schools in states that have an OSHA-approved state plan. OSHA itself does not have authority over public school systems because OSHA does not have jurisdiction over state and local
