OSHA’s Upcoming Regulations Under Biden’s COVID-19 Plan

OSHA’s Upcoming Regulations Under Biden’s COVID-19 Plan: Anticipated Questions and Answers

By MEREDITH J. MARONEY

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 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?

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

government employees. State and local government employees are only subject to OSHA if the state in question has an OSHA-approved plan. For example, Tennessee does have an OSHA-approved plan, TOSHA. Upon the release of OSHA’s ETS, TOSHA must either adopt OSHA’s ETS or promulgate its own ETS that is just as effective. This means that state and local government employees will be subject to OSHA’s ETS because (1) TOSHA has jurisdiction over state and local government employees, so its regulations apply to those employees; and (2) TOSHA must either adopt OSHA’s ETS or promulgate one that is just as effective.

Question 6: Could congressional legislation affect OSHA’s ETS?

Congressional legislation could potentially affect the ETS’s enforcement provisions. In his Covid-19 Plan, Biden stated that the fine for violating OSHA’s ETS would be $14,000 per violation. However, if Congress passes the Reconciliation Bill (also known as the Build Back Better Act) without revising Section 21004 and Biden signs the bill into law, that $14,000 penalty could increase anywhere from $50,000 per violation to $700,000 per violation. Currently, OSHA fines employers who willfully violate its standards, including its ETS, and who fail to provide their employees with an environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to . . . [their] employees;” such fines range from $9,753 to $136,532 per violation. 29 U.S.C.S. §§ 654-655, 666(a); 29 C.F.R. § 1903.15(d) (1). The House of Representative’s Reconciliation Bill amends OSHA’s penalties for employers who willfully violate OSHA by increasing the minimum fine to $50,000 per violation and by increasing the maximum fine to $700,000 per violation. Build Back Better Act, H.R. 5376, 117th Cong. § 21004(a) (2021). Employers that receive a penalty for repeated violations pay no more than $136,532 per violation. 29 C.F.R. § 1903.15(d)(2). But the proposed Reconciliation Bill increases that penalty to $700,000. Build Back Better Act, H.R. 5376, 117th Cong. § 21004(a) (2021). For employers that receive “a citation for a serious violation,” which includes violating an ETS, those employers are fined $13,653 per violation. 29 U.S.C.S. § 666(b). 29 C.F.R. § 1903.15(d) (3). But, the House of Representative’s Reconciliation Bill increases that penalty to a $70,000 penalty per violation. Build Back Better Act, H.R. 5376, 117th Cong. § 21004(a) (2021). For employers that do not correct the violation within the time specified in the citation, they could face a penalty of “$13,653 per day.” 29 U.S.C.S. § 666(d). 29 C.F.R. § 1903.15(d)(5). But, the Reconciliation Bill increases that penalty to a maximum of $70,000 a day. Build Back Better Act, H.R. 5376, 117th Cong. § 21004(a) (2021). The House of Representatives is revising the Reconciliation Bill, but there is no indication that the OSHA penalty increases will be removed.

The final details of OSHA’s ETS, and any alternative regulations from state-sponsored OSHA plans, are subject to revision. However, this new ETS proposal makes significant changes to current rules affecting employers and their workers. Employers will want to stay abreast of these upcoming regulations and prepare for any changes in their occupational safety measures regarding COVID-19 to remain OSHA-compliant and avoid penalties or other repercussions.

Meredith J. Maroney, Associate

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