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OSHA ETS Insider Scoop and What it Means for You

Date: [ax-webinar-date] • Runtime: [ax-webinar-runtime]

OSHA Emergency Temporary Standards (ETS) is out. What does it mean to you? And, how will employers comply with the new regulations and avoid paying hefty fines?

Join us now as our Axiom Medical’s expert panel, including former OSHA Secretary Dr. David Michaels, CMO Dr. Scott Cherry, and CLO Chuck Kable, and host Holly Foxworth will shed some light on this topic and walk you through the main highlights of the ETS.

The “OSHA ETS Insider Scoop and What it Means for You” webinar covers:

 

  • New ETS regulations
  • Vaccination mandates and deadlines
  • Testing mandates and deadlines
  • Path to compliance – tips, and suggestions for employers

[ax-webinar]

[00:01] – Holly Foxworth

Well, good afternoon and welcome to the OSHA ETS Insider Scoop and What This Means For You Webinar. My name is Holly Foxworth. I’m a registered nurse at Axiom Medical and also the Webinar host and the marketing manager content. I’m extremely excited to be able to bring you such a knowledgeable panel of guests here that are truly OSHA experts, and they’re going to be able to break down all things ETS that came out this morning and then also pick up your questions on the back end.

Before we get started, I do want to give you just a few quick announcements. You’ll notice that there is a bit of a blank screen right now that is probably in the middle of your console. It looks like that there may be some technical issues on the side of our Webinar provider, but anyway, if those come up, you will see those. And in addition to that, though, on your console, what you’ll see at the very top, on the top right. That should be where you’ll see information about entering the question and answer. If you have questions about the ETS, if you have questions about the workplace, anything like that for speakers, please type that into the box. And then we will pick those up on the back end. Below that, you’ll notice that there is actually what we call our resource section. So it’s got everything from white papers. I think there’s a fast track to OSHA Covid Compliance guide. And then in addition to that on the left hand side, you’ll see a button. And that’s where it is that you can request a demo, meet with our team and talk about a demo for acting and testing vault, which are going to be key for organizations to be able to get their employees up and running and get compliant with what these standards are. Look, it looks like we have a few slides. I don’t know whether those are working Jason or not, but anyways, so at this point, I’m going to go ahead and turn it over to our guests to introduce themselves and tell us a little bit about their background. And then we’ll hop into some of the individual components of the ETS. So I’ll start with you, Dr. David Michaels.

[01:58] – Dr. David Michaels

Well, thank you, Holly. It’s great to be with all of you today. As you heard, David Michaels, I’m a professor at the George Washington University School of Public Health in Washington, DC. My training is in Epidemiology, but I’m probably here, most importantly, because I was the director, the administrator of the Occupational Safety and Health Administration from 2007 to January. I’m sorry. From 2009 to January 2017, I was the longest serving director in OSHA history. Actually, I’ve just been replaced. My replacement finally was sworn in yesterday. The position was empty for quite a long time. I’ve also been working with a group called the Health Action Alliance, which is a coalition of business groups like business roundtable, communication groups like the Ad Council and foundations like the CDC foundation and the Robert Johnson Foundation with the objective of strengthening vaccine acceptance, advancing health equity and rebuilding public health. I’m just really pleased to be able to speak with you today.

[02:58] – Holly Foxworth

That’s fantastic. I’m so glad that you’re here. You’ve been such a wealth of knowledge and really kind of helped us to better understand what was coming down the pike. And then also, we’re tickled to have you today so that you can give us a little bit further explanation in terms of what’s included in the guidance here. I tell you what, now we go to Chuck Kable next, Chuck, do you want to take it?

[03:17] – Chuck Kable

Sure, Holly. Hi, everybody. Thanks for being here today. My name is Chuck Kable. I am both the head of legal and the head of human resources at Axiom Medical. I’ve been a lawyer for over 20 years, and I’ve spent the better part of the past two years learning everything I can about OSHA and observing the way things have developed. And I’m very excited to honor to be a part of the group today. Thank you.

[03:39] – Holly Foxworth

Fantastic. All right. And then Dr. Cherry?

[03:43] – Dr. Scott Cherry

Yes. Good afternoon, everyone. My name is Scott Cherry. I’m Axiom Medical’s Chief Medical Officer. My professional background is I’m board-certified in preventive medicine, public health, and occupational environmental medicine. And I’ve been supporting the military, industrial and corporate operations for the past 15 years.

[04:02] – Holly Foxworth

Fantastic. All right. So in terms of what we’re going to kind of go through today, we will talk about OSHA’s reach, who these standards will pertain to. Then we’ll pick up. We’ll talk a little bit about the size of organizations because that’s been a key ticket in terms of deciding how many employees that you have, how those criteria are met, and what would be specific to your organization. We’ll talk about the vaccination, testing, record keeping, etc., pick up OSHA enforcement strategy on the back end. And then finally, we’ll talk about some best practices for getting your program up and running with question and answer. So I tell you what, why don’t we start with Dr. Michaels? And we’ll just kind of ask if you can kind of go through that Dr. Michaels, and let us know, speak to what is in there and how that specifically pertains to some of these different employers, their organizations?

[04:58] – Dr. David Michaels

Sure. Well, this is a great opportunity because this standard came out this morning, actually officially comes out tomorrow. But we were able to read it, it’s 500 pages, though the standard is only about 13 pages. And those key parts, cover employers with 100 or more total employees nationwide. So if you have, let’s say, ten sites with ten workers each, you’re covered because that’s how they’re going to account employees, the number of total people you have, if you have part-time workers or temporary workers, if they’re on your payroll now, that gets covered. OSHA is estimating this is going to cover about 263,000 entities, corporations, and firms, about 1.8 million establishments or workplaces, and 84 million workers. The key to it, and I’ll just summarize it really quickly.

We’ll be able to get into it more. It gives employers 30 days starting tomorrow to develop a vaccination program. And that can be everybody has to get vaccinated, or you have an option of saying that if you’re not vaccinated, you can get tested. Workers can be tested. And then if they come in, though, they have to wear a face covering, it’s clearly been set up to encourage mandatory vaccinations. Every structure says workers and employers are both going to be really encouraged to do that. So you have to have that program in place 30 days from tomorrow where people you’re going to keep track of everybody who’s vaccinated. But it’s 60 days before you would have to start a testing program, which essentially gives you enough time now if people start getting vaccinated tomorrow or next week, and then you’ve got to wait four weeks if you’re doing the Pfizer vaccine and another two weeks before they’re fully vaccinated, you’ve got some time. But it essentially says that in 60 days, you’ve got to set up a program where people are being tested. Also, there are a bunch more things in there, and I’m happy to talk about them. Let me stop there and we can begin to talk about things like that.

[07:07] – Holly Foxworth

Yeah, that sounds great. Okay, so let’s talk about the size because this seems to be a big issue that keeps coming up. I’ve seen it in some of the questions that we’ve gotten for follow-ups. Pick it up on the back end as well. Chuck, maybe I’ll start with you here. So what is that magic number that people are looking for? What the criteria are, how many employees do they have to have for them to fall under this regulation?

[07:34] – Dr. Scott Cherry

As Dr. Michael said, it’s 100 employees across the country from a payroll perspective, I think it can get a little more nuanced than that. We’ve been getting a lot of questions about what if everyone’s 1099 a contractor? What if I’ve got two separate subsidiaries? I think you start to get into concerns over what’s called the joint employer doctrine at that point. And so you want to be mindful of how you’re structured and seek independent legal advice to kind of understand where those issues lie, right? Because it may not be as simple as I have two separate entities under common ownership, and there’s ten, and then there’s 90, we’re good. Well, no, you may not be good, because that common ownership could trigger what’s called the doctrine of the joint employer doctrine, which would essentially deem you as being a 100% company for total size purposes. So these have been around for a long time. There was a while where private equity companies had some concern around portfolios and whether they would be implied to have this big organization because of the control aspects. So there’s enough information out there for you to get some reasonable advice from outside legal counsel. But don’t assume just because you’ve got a subsidiary structure or contractors that that’s going to be good enough. So what we learned, at least on the healthcare ETS side, was there were some very specific language around who is counted towards that 100 number. It’s less clear in this more broad standard, but I still think the businesses should be wary and mindful of the fact that there are these legal doctrines that could footfall them into that 100 or more categories.

[09:14] – Holly Foxworth

Yeah. Definitely.

[09:19] – Dr. David Michaels

OSHA has also asked the question, should this apply to smaller employers, and they’ve opened up a docket that they’re asking for comments, and they could easily come back in a few months and say this should be covered going down to ten employees, for example.

[09:34] – Dr. Scott Cherry

That’s a great point.

[09:36] – Holly Foxworth

Really good point. Yeah. Well, and we’ve had a lot that has asked that specifically. We even have emails this last week that said, I don’t have 100 employees but is this something that I should be looking at? And I think it always comes back to that conversation of where we talk about do the right thing about taking care of your employees. And ultimately, that’s what keeps your workforce safe. So one thing I did want to ask, though, maybe if one of you could kind of give some clarity on the difference between the OSHA ETS and then those ones that would fall within the CMS, and then also those federal contractors, somebody gets additional information about that?

[10:28] – Chuck Kable

Holly, I think the CMS piece is particular to those entities that are receiving payments from Medicaid or Medicare, right? So that’s the authority and the control that that organ has over kind of the health system is they can condition payments on meeting certain requirements, as those of us with health care experience understand. And so they are attaching this concept of vaccinations to essentially the entitlement to receive payments under Medicaid or Medicare is my understanding, which is a little bit different than the kind of this general standard, more particularized to kind of hospitals and health care. But again, meaningful, right. Because anything that’s going to impact revenue is a big deal.

[11:08] – Holly Foxworth

Yeah. Definitely.

[11:13] – Speaker 2

This is part of a suite of four different federal regulations President Biden announced in September. The first one was federal workers, and they all have to be vaccinated. The second federal contractor. And that’s if you’re on a contract that’s been modified or new since the beginning of October, every employee involved in that contract has to be vaccinated. And it’s quite broad in that it includes things like the accountants in the central office who might be working on the contract or other people in the same facility where you have workers working on the contract. For both of those which have been in effect for a while, there is no alternative. There’s no testing. It says you must be vaccinated, except if there’s a special exemption for medical or religious grounds. This new CMS rule that came out today also, it doesn’t provide any sort of testing alternative. Everybody must be vaccinated except if there’s an exemption. OSHA is the only one that is more complicated. Workers can choose not to be vaccinated. If they do that, then they have to do certain things and the employer has to do certain things.

[12:25] – Holly Foxworth

Chuck, I definitely want to come back and read this at that piece about the exemptions because there’s definitely been a lot of discussion about that. But in terms of the workplace vaccination testing, some of this data that’s here what specifically Jason had mentioned. Guys, if you’ll refresh your screen and they’re saying that the platform may be up so that you can see our slides. So those of you who are viewing from an attendee standpoint, you’ll just refresh that. Hopefully, you’ll get to where you need to be. So back to the vaccination piece about the testing, the real-time data, etc. So one of the biggest things that we are getting continuously is who’s responsible for paying for this. So if someone doesn’t have the vaccine, then who is the one that’s responsible for paying for this at a minimum, weekly testing.

[13:19] – Dr. David Michaels

Vaccinations are free, but employers have to, once this goes into effect, which is 30 days from tomorrow, employers will have to give workers time off, 4 hours of time off at least, to be vaccinated. They won’t have to pay for the vaccination. In terms of recovery, they have to give workers time off to recover. They can work things out in terms of who covers the sick pay. If workers have sick leave coming, employers can have them take that, but if they don’t have sick leave coming, that time has to be paid for again by the employer. Testing though does not have to be paid for by the employer. OSHA left that up to the employer. I know that there are many companies with collective bargaining agreements where this will be negotiated. In those cases, I suspect the employer will have to pick up the costs, but I think this is written to push some of these costs onto workers. Because this testing can be expensive, it could be time-consuming and burdensome. So this will encourage people to get vaccinated. And the testing is not simply you can pick up a test at the drugstore and you can have it done at home. It has to be proctored or observed. In other words, you could have the testing done. The employer can have the testing done in their offices, in the medical where the physician watches it and sees the result. Or there are systems now where you can be tested home and on your cell phone, someone’s watching you do it. Those are expensive. But right now that’s sort of where OSHA is leaving it. They’re going to leave it up to the employer to figure that out.

[14:58] – Holly Foxworth

So then, with the employer being left to figure that out, then do they still have to fall within what the guidelines would be of whether they need, like, a PCR test or that it has to be that proctored type of observation if it is done at home?

[15:13] – Dr. David Michaels

Well, it could be a PCR or a rapid antigen test. There’s actually some possibility for even doing this pool testing if you’re an epidemiologist. That’s sort of interesting. But the main thing is that, though, is if you’ve got a positive test, you’ve got to also pull someone from the workplace that has to be isolated. Antigen tests can give you false positives. So if you start with antigen tests, you have to be prepared to follow with a PCR.

[15:36] – Holly Foxworth

Yeah, definitely. Okay. And so is it the responsibility of the employee then to bring back that negative result if they are the ones that are actually getting the test?

[15:46] – Dr. David Michaels

Well, actually, OSHA looks at the employer’s responsibility to make sure the employee does that. OSHA has no authority over employees, but says to the employer, You’ve got to get that information and you’ve got to figure out how to get it and how to maintain it, because OSHA can ask for that information. And you’ve got a reply pretty quickly when OSHA calls up and says, I want to see your roster of all your workers, and when people have been tested, when they’ve shown you they’ve been vaccinated things like that, you gotta be prepared to do that.

[16:19] – Holly Foxworth

So Chuck, let’s get to the exemption piece there because you’ve spoken actually yesterday about some of these exemptions and things that employers would want to look at whenever they’re thinking about it in the big picture and process-wise. So talk to us about those exemptions and some things maybe that they’re still in the gray area realm.

[16:40] – Chuck Kable

Yeah. Well, certainly OSHA recognizes that there are situations in which vaccinations should not be or cannot be delivered to an individual employee.  It’s contraindicated medically, for example, if there is a medical reason to delay vaccination, and then, of course, whether there is a reasonable accommodation that can be made for someone with the medical condition or a sincerely held religious belief, which I specifically spoke about to Sherm yesterday. The lesson from employers on this point is you have to be prepared to manage that process.  And the most important thing is to remember uniformity and approach is where you want to be. So kind of this concept of a written policy which is contained in the standard is important, and you may want to consider the way in which you or revisit I should say, your accommodation policy and approach to making sure you have something to compare against and pressure tests when you’re attempting to demonstrate consistency and application. The biggest, I think for the 10,000-pound gorilla really is how everything works out relative to the religious accommodation request, because there has been a flood of these, and we expect that to continue. So employers have to be very cognizant of that and make sure that the process and mechanism for obtaining that information from employees are very clear. You have to communicate very well, transparent communication, because ultimately, as I said yesterday with Sherm, this is a big cultural issue, too. So not everybody is comfortable with being told you must do this. And so they will be seeking potential ways to find to not have to submit to a vaccination mandate. And if someone has a religious reason, the employer is then faced with attacking credibility or pursuing undue hardship analysis.

[18:31] – Chuck Kable

And so culturally, employers have to be mindful of that and think through it and make sure they have a reasonable approach and that they’re communicating with their employees. So they understand exactly what’s happening. And indeed, I think OSHA recognized that because there are some key notification requirements as well beyond simply the policy stuff that employers are obligated to follow. So you have to educate your team about the standard, the ETS. You have to educate the team about Covid-19 vaccinations with an information sheet that’s provided in the ETS, and you have to provide some other information that is contained in the standard as well that I can’t recall this exact moment, but very clearly, some other communication issues that have to be addressed here. But certainly, this accommodation and due hardship issue is not going away anytime soon. And I expect it to develop more fully as well over time as we see how things can out for sure.

[19:28] – Holly Foxworth

Yeah. So before I go to your Dr. Michaels to talk about some of these enforcement strategies, I wanted to pick up Dr. Cherry and just kind of ask the question of we saw that in this mandate, that there’s a reference to those that are unvaccinated, that they have to continue the masking process within the workplace. Any thoughts on that and why maybe that was just included for the unvaccinated?

[19:55] – Dr. Scott Cherry

There’s been a lot of studies coming out in the last couple of months that look at viral loads in Covid positive or symptomatic people. And one thing that we started to see is there are breakthrough infections in the vaccinated. However, they seem to clear the viral load much quicker than the unvaccinated. And so I think the masking towards the unvaccinated is addressing that difference of transmissibility and viral clearance. And so that’s what comes to mind when I look at that policy decision.

[20:37] – Holly Foxworth

Okay. Well, moving on then to the one that I think that everybody is the most nervous about, which is this enforcement piece. So, Dr. Michaels, I’m coming to you and getting your thoughts here. How is it that OSHA is going to be able to enforce this?

[20:52] – Dr. David Michaels

That’s a really interesting question. The rule will be primarily self-enforcing. When I speak to employers most of the time, they don’t ask, How will OSHA reinforce the rule? They ask, How do we best comply? I think the employer is not resisting, they’re adapting. This is because most employers, want to do the right thing. They want to keep their workers safe. They want guidance on how to follow the rules. They don’t want things to be too vague, and they also want a level playing field. So they’re not disadvantaged when they do the right thing because that’s going to cost them money. So I think what OSHA primarily wants is to respond to worker complaints, and there’ll be lots of them and they won’t be able to inspect on all of them. But much of the response is going to be done by phone that you would get a phone call from OSHA saying we’ve had a complaint. They won’t tell you who the person is. If the complaint is made, you would be asked to email or perhaps fax records to OSHA, and you have to do that pretty quickly, according to the rule. The agency is going to send out some inspectors for spot inspections, who will then issue citations and finds where necessary.

[22:01] – Dr. David Michaels

The maximum fine for a serious violation is about $13,600. I don’t think OSHA is going to do that. In most cases, though, in unusual circumstances, they could do that or even ten times as high. OSHA has used that sort of penalty in the past when you had situations like an employer who ran a tax accounting office that refused to let their employees wear masks or let the customers wear masks and someone got sick. And that was really a pretty egregious problem. But they will issue some big fines and they will issue press releases because the objective of the notion is fine because there aren’t that many inspections, and the fines aren’t so great. But by putting out a fine, sends a message to other employers who are not in compliance, that they should get into compliance in order to protect their employees. So the publicity is really to encourage compliance. That’s what we’ll see. I think mostly it’ll be done by phone call. There’ll be some inspections and then some inspections will lead to citations and fines.

[23:06] – Holly Foxworth

So one of the other things that we talk a lot about is this concept of the whistleblower and what type of impact that could have in the enforcement of some of these issues. If you have employers that aren’t compliant and you have an internal person that is reporting you to the organization, what type of notification would you get? Would you receive a phone call or could they do unannounced inspections or how would that work?

[23:34] – Dr. David Michaels

I think you won’t get that many unannounced inspections. You’ll get a few. And also, I think what will happen is when OSHA inspectors are doing other inspections, whether it’s for machine guarding or construction site or whatever they will say, Let me see your roster, let me see your records for this program. And if things don’t look right, they’ll ask for more details in the phone call you get. If a worker contacts OSHA, you may be reminded that it’s against the OSHA rules to retaliate against anybody who raises any worker, who raises a concern with OSHA, and they will be very firm about that, even if you have suspicions that someone may have called them, so what? Do not do anything to retaliate against that work because you could certainly get into much deeper hot water for sure.

[24:25] – Holly Foxworth

I think the last piece that we’re going to talk about before we jump into many of the questions that are here was about the best practices. And I’ve heard actually, all three of you have had great insight and suggestions. Chuck, one of the things that I have always heard you speak about is the importance of being transparent and communicating with your employees about what’s going on and how that’s going to impact them. Do you feel like that this is going to be a huge move by employers to be able to keep that same stance and make sure they’re involved in the process so that you don’t have the complaints on the back end?

[25:02] – Chuck Kable

I think it remains to be seen how employers ultimately react, right? I certainly think that for employers that have larger employee populations where kind of the risk of multiple burdens meeting lots of folks potentially calling in is a whistleblower. You want to be mindful of that. But ultimately, my perspective as being kind of an HR leader as well as a legal leader is you want to make sure that the culture that is established or the culture that you want to build at that organization is protected and maintained. And so while we are subjected to government regulation, it doesn’t mean we’re going to take everything that we built in terms of our approach to employee communication, transparency, buy-in, and all that stuff and throw it out the window. Right? I mean, you still want to run through your process based on your organization’s cultural identity, to have that discussion, to talk about what’s happening and why it’s happening and why it’s important, and how we’re going to handle it. I think the practical considerations that a lot of businesses are facing are what impact is this going to have on an already difficult labor market? We don’t know. I mean, there’s been some anecdotal evidence we hear about nurses, for example, leaving in droves when the health care standard came out. Droves is probably the wrong term but certainly leaving. We don’t know what the ultimate impact is going to be as more employers consider a more aggressive stance and require vaccination. So certainly the culture should be the guiding light.

[26:32] – Chuck Kable

Now, not all organizations have the same focus. They’re still building culture. Maybe they don’t have an immediate kind of thought about what their culture is or should be, perhaps the culture by default, as opposed to by design. And so in those circumstances, we’re going to have to see how things turn out and you’re going to be more reactive than proactive, I think. But the great unknown at this point really is the way in which employees will perceive employers’ behavior around compliance ultimately, and they’re going to make their own assumptions and create their own messaging in the absence of clear, open, and honest communication. So I think employers everywhere owed to themselves, too. At the very least, whether you have a culture that’s like this or not, come up with an effective, truthful, open, and honest way to talk about what you’re doing, why you’re doing it, and how it’s going to impact your business.

[27:26] – Holly Foxworth

Absolutely. Dr. Michaels, I was watching an interview that you did the other day, and they were talking. I think you were asked the question about what do we do as employers if our employees threaten to leave if they leave their job if we make this a mandate, share with our audience here what your thoughts were on that. What that actual impact would be and what do those numbers have kind of shook up to this point?

[27:52] – Dr. David Michaels

Well, this is a little bit of a moving target, but it certainly appears that many of the companies that have decided to have absolute vaccine mandates have actually done surprisingly well. The headlines go to the eight workers in a hospital leave and therefore obstetrics has to shut down. But for the most part, it’s actually pretty small numbers. What you hear is there are a lot of workers who have been hesitant. They’re not viscerally opposed to getting vaccinated, but for whatever reason, they survived it. And now when their employer says you must get vaccinated, they get vaccinated. And so United Airlines, for example, which lost 600 employees, a little less than that, they’ve got 67,000 employees. So that’s less than 1%. It’s a minor turnover issue in the big picture. The other thing is, it’s become increasingly difficult to find places to work that don’t require vaccinations. And the federal contractor regulation says that if you’re covered by that, the contractor can’t hire people after December 8th who are not fully vaccinated. So I think there will be fewer choices out there. So I think this will change the culture of the country, saying that for many people, now is the time to get vaccinated, and it’s going to make a difference. We sort of got used to this new normal of Covid, but we had 7200 people who died yesterday of Covid. This virus is not disappearing, and hopefully, all of these new requirements will make a difference.

[29:26] – Holly Foxworth

Definitely. Yeah. Just to finish up with you as well. You’ve always spoken about total worker health and the importance that the employees, the employers, that they make that a priority that they’re paying attention to what’s going on as an individual employee can invite the workforce, they can cause injuries, they can have accidents, etc. Do you feel like this is a step in that direction towards taking a bit more responsibility and taking care of your employees at the same time?

[29:55] – Dr. Scott Cherry

I do. And I think this standard is actually going to reinforce and bolster that. Ever since Covid started, we’ve been recommending a zero-tolerance of infection in the workplace. So aside from Covid, there has always been flu strep, RSV, other things where a lot of people came into work kind of as a badge of honor. But now we’re seeing more than ever. It’s very important to not allow any infectious disease into the workplace. And I think your comments, Dr. Michaels, I saw you talk last week about how you felt the primary mechanism would-be whistleblowers. And so aside from having that transparent education to all employees about what you’re doing, I think not allowing anyone sick into the workplace, whether it’s Covid, flu, RSV, is going to be huge, because if someone is concerned about their employee doing the right thing, if their coworkers are coughing, sneezing, feverish, they’re going to be very quick to pick up the phone and call OSHA. I know daily health attestations weren’t specifically a requirement per se in the ETS unless I really just had a chance to scan it this morning, but it is spoken to a degree. But I think it’s going to be a best practice because it’s one of the first primary preventive strategies to prevent any illness in the workplace at all, at least from a symptomatic perspective.

[31:28] – Dr. Scott Cherry

And so the other component I was thinking about is really having a very timely response in case management to someone who tests positive. Someone may be asymptomatic but test positive and not really feel like they’re at risk. So having a professional be able to direct them into the right resource, they need to socially isolate immediately. They need to get in touch with their primary care provider for warning signs of severe disease. And so employers now are, since they are somewhat associated with this weekly testing for the unvaccinated, they’re going to need to either develop that skill set or partner with someone that can manage this new source of information that they’re not used to dealing with. And lastly, I’ll finish on what Chuck speaks to is data cycle management, where employers now are going to be needing to store and appropriately seclude that private information to the appropriate personnel. And so that’s a whole other skillset potentially for sectors outside of health care necessarily. But I do think this is really a great bolstering of total worker health, which has kind of been at least around for ten or 20 years but hasn’t really had the chance to kick off. So I think this is going to bolster that in many ways.

[32:54] – Holly Foxworth

Absolutely. I agree completely. Before we run, we hop over to some of the town hall questions that we’ve gotten. I just want to ask Dr. Michaels, will you confirm again for what those dates were that were provided in the ETS for both the compliance program with your vaccinations and then also those that would need to start a testing program? What the deadlines were there?

[33:21] – Dr. David Michaels

The overall program has to be in effect 30 days from tomorrow. I think that’s more or less December 3rd or December 4th. And that means you’ve got to have your program. You’ve got to get information out to people. If they’re unvaccinated people, they have to be wearing masks. You have to be able to call OSHA if you hear about hospitalizations or deaths. And you’ve got to have a program, as you’ve just heard, to isolate workers who are found to test positive 30 days after that. Approximately, I think January 4th, will be when you have to have a program in place to start receiving the tests of unvaccinated workers. You have to have that setup, and obviously, you’ll have a lot of options on how you set that up. But starting January 4th, if a worker is not vaccinated, unless you have a recent negative test, you can’t let them in the workplace. Now, there are exceptions. They can work from home if they’re always working outside. If they never enter a vehicle or a building, they don’t need to be tested. So those are the people who are covered by this.

[34:32] – Holly Foxworth

Thank you. All right. So let’s hop into some of these questions that were here. Let’s see. We’ve got the first one that came to us this week from Mike and Mike was asking, We have a production facility in Alabama, and the governor is filed suit against the federal government required regarding the mandate, will our management team still need to comply with the mandate? Who’d like to take that one?

[35:01] – Chuck Kable

Just, generally speaking, the fact that there’s a legal dispute doesn’t mean you don’t have to comply with federal law unless and until there’s some kind of an injunction or other court order, and even then, it may be limited in jurisdiction. So again, it’s going back to the kind of risk appetite and risk tolerance of an organization. I think there are a lot of people asking the question, do we have to do this? If we think there’s going to be a fight about it? Again, you got to ask yourself more questions than just that, because your employees, whether you like it or not, are judging you based on everything you do or do not do. So while you may want to kind of sit back and see how this ferrets out in the court system, it doesn’t necessarily mean your employees all have the same point of view, even understanding that there’s going to be an impact to the bottom line relative to an enhanced compliance obligation. You got to be thinking about this more strategically than simply is this going to ultimately be enforceable or not. And I think at the end of the day, as Dr. Michaels has pointed out a number of times, OSHA is about making sure workplaces are safe and secure and free from unreasonable risk. And so it still doesn’t free you from your general duty under OSHA to make sure that your worksite is safe. So it’s not going to stop somebody like what happened with kind of the first lawsuit with Walmart, right? Where an individual died because they were exposed at work. You’re not going to get protection from those kinds of lawsuits because you’re going to sit back and say, We’re not doing anything to see if this is enforceable. There’s no clear answer here, but that’s my kind of perspective on it.

[36:43] – Dr. David Michaels

If I can add, the standard very clearly says that this preempts any state or local law regulation. And so while that will be fought out in court, anybody who reads that is going to say what this applies. Certainly, if OSHA gets a call, they will send in inspectors unless a court stays this whole standard. So I would very much agree, you’ve got to just move forward with the standard.

[37:13] – Holly Foxworth

Yeah. Let’s see. I believe Debbie was next. Debbie said, If several companies are owned by a private equity firm, each having their own EIN, would the 100 employee criteria apply to each of the individual companies?

[37:37] – Chuck Kable

I highly encourage you to talk to your own lawyers about this, right? But ultimately, I think the standard has switched. There was a time, a number of years ago, our PE groups were a little bit concerned they joined employer doctrine was going to extend. It’s not just about EINs, though, right? It’s not just about those form issues of form, right? You have to address control leadership structure if it’s separate entities, with separate EINs, and it’s the same CEO, the same management team, the same payroll system. I don’t know. I mean, I encourage you to talk to your own lawyers about that, to get a read out on the potential for joint employer liability. But again, going back to what I said earlier, it’s not going to relieve you from any and all obligations here, even if you’re not 100 employees, right? Title seven, for example, which is the religious accommodation where the religious accommodation issue comes from, applies to employers with more than 50 employees. So you’re still going to have to run processes to manage situations here. If you’ve got no centralized leadership, you’re requiring vaccinations at different localities. There are all kinds of issues that pop up. But ultimately, this is a joint employer issue, and the facts of each situation will drive the determination as to whether or not you hit the 100 employee threshold or not, I think. But again, I’m not your lawyer, Debbie. So please do talk to your own attorneys about that.

[39:11] – Holly Foxworth

All right. Let’s see. I think Carson was asking, I am hearing different answers about testing, do we have to provide employees with PTO for vaccination and testing?

[39:26] – Dr. David Michaels

Could you repeat that question?

[39:30] – Holly Foxworth

Sure. Carson was saying that he was hearing different answers about whether you needed to provide PTO for your employees for both vaccinations and also for testing. If they elect you to not get vaccinated.

[39:44] – Dr. David Michaels

Do you mean PPE, perhaps?

[39:48] – Dr. Scott Cherry

Pay time off.

[39:50] – Dr. David Michaels

Oh, time off. No, that’s only for vaccination. It’s a little complicated. You have to provide 4 hours for vaccination if people have not been vaccinated. If people need time to recover and if the vaccination occurs over the weekend and timing not normally working, you don’t have to provide that time. If people need time to recover from the side effects of vaccination, you can have them use their sick time if they have sick time available. If you don’t provide sick time or if they have no sick time available, you have to give them that time to make sure that they can recover.

[40:39] – Holly Foxworth

Okay. Got you. And Chuck, I would assume that you would advise the organizations to make sure that their policies were updated with that information as well?

[40:48] – Chuck Kable

Yeah. Policies are critically important in this kind of stuff, right? Because that is the document that drives uniformity and consistency of approach and a lack of uniformity. A lack of consistency is where risk lives. Absolutely.

[41:04] – Holly Foxworth

Okay. Let’s see. We’ve got one from Joanne. I think we kind of covered this a little bit earlier, but she’s asking, Recognizing that Covid can be spread in vaccinated and unvaccinated populations, why does the ETS require masking only in the unvaccinated?

[41:26] – Dr. David Michaels

It’s a reasonable question, but certainly, people who are unvaccinated are much more likely to be spreading it to others. That’s the idea here. They’re also much more at risk. You could make the case that in areas where there are high levels of community transmission and there are lots of people in a poorly ventilated area, everybody should be masked. But I think OSHA was limiting how far they were willing to go. And I think also they were really trying to focus on just encouraging vaccination and discouraging unvaccination. So people who are not vaccinated have more burdens. Not only do workers have to be masked, but there’s no requirement that the employers provide the mask, which is unusual. All previous OSHA regulations required the employer to provide any material that’s needed to meet a standard.

[42:18] – Dr. Scott Cherry

Maybe what I’ll just add is just like with many other medical surveillance standards, companies can elect to go above and beyond what’s in the standard. Sometimes there may be new science that comes out after the standard has passed or other guidelines from the Certified Industrial Hygienist or other agencies. And so many companies go above and beyond. And I think this is a great case here where it depends on risk tolerance as Chuck talks about for an organization. But in general, I would say when we think about workplace safety. The workplace should almost be safer than the general public, so to speak. And that may be just our philosophical approach. But many times when we do our evaluations of the effectiveness of our programs for our clients, we show an exponential level of lower risk of infection in the communities that they operate. And so I think again, the ETS is a nice requirement to work off of, but there can still be best practice over and above what’s in that standard.

[43:34] – Holly Foxworth

Absolutely. Yeah. Let’s take some questions that actually came from the audience as well today. Let’s see the first one we will take. Clinton asked, There is no research to back up the claim if we have a decrease in vaccinations. Clinton, we may follow up with you individually on that one. What data is Dr. Michaels using to state that unvaccinated employees are much more likely to pass on Covid?

[44:13] – Dr. David Michaels

Yes, unvaccinated workers are much more likely to get Covid, so that alone makes them much more likely to pass it on. In addition, there’s some evidence that people who are vaccinated don’t have as much of a viral load for as long a period of time. So certainly people who are vaccinated can absolutely spread the disease, and they can be infected by others who are vaccinated. But the unvaccinated are just far more likely to both spread the virus and to be the recipients of the virus and become infected.

[44:48] – Holly Foxworth

Good. Let’s see. Melissa was asking, In a work location, are we to rely on the ownership accountability, especially those that everyone cannot share with everyone who is vaccinated and who’s not. So I think what she’s saying is that we really can’t point people out as to who’s vaccinated and who’s not vaccinated. So does it then revert back to the honor system on how it is of who it is that would need to be wearing a mask and who would not?

[45:24] – Chuck Kable

No. I think that OSHA makes it very clear in the ETS that one of the obligations of the employer. This relates back to kind of the data cycle management pieces. They have to create a record of who is vaccinated and who is not. And so you have to run through that process. And then there are very specific ways in which someone can provide that proof. And then there is a kind of final option that if the proof is lost, the acceptable forms of proof are lost, then an attestation can be provided. However, one of the elements of notification that an employer is obligated to provide is also a reminder that statements made in fulfillment of the standard that is fraudulent can subject you to criminal charges. There is some honor system component here, but the consequences for misrepresenting could result in criminal charges here. And so I think that this is, again, an example of OSHA doing what they can, given the circumstances to provide a structure where it’s reasonably clear what’s required to provide proof. And then in the absence of proof, will allow people to attest. However, if they’re misrepresenting, then we’re also educating them that they’re subject to claims criminal charges.

[46:48] – Holly Foxworth

Okay. Good information. Dr. Michaels, I know that you have to drop off here in a few minutes to give an interview on CNN as well, but you’re welcome to stay with us as long as you possibly can, but we need to understand. All right. The next one came from Brian, and Brian was asking, Is there not any documentation that is going to be required for that daily attestation of health? So the daily health check.

[47:24] – Dr. Scott Cherry

The only requirement. When I reviewed the ETS for documenting the daily health attestation component of it, I would just probably reinforce it may be good to have that as part of your policy requirement and even a functional component of it, because over time, complacency can and will kind of take over. And so you do want to have some type of system that would really track and functionally disposition those that are reporting illness, whether it’s they go into the sick leave bank or into some type of absence management. But I don’t think it’s a hard requirement of the ETS.

[48:14] – Dr. Scott Cherry

Okay.

[48:16] – Dr. David Michaels

Right. On the non-healthcare standard, it’s not a requirement. I believe it is a requirement on the healthcare standard. But the one thing I want to add to what Scott just said is we’re living at an interesting time, right? And I think that as businesses eyes are opened to the impact of illness in the workplace, at what point are we all going to take a step back and look at this and say, Listen, Covid is one example of the bad things that can happen when people come to work sick. And as Scott mentioned earlier, is a time for us to begin to address this kind of scourge of illness in the workplace more generally. So it’s not just now, clearly, we have regulatory requirements related to Covid, but what is the impact of lost time from work because you’re sick prior to this anyway, right? As Holly certainly say many, many times, it’s in the hundreds of billions of dollars of lost time from work based on illness historically. So the daily health attestation is another way that businesses can begin to think about a proactive approach to not just address kind of Covid outbreaks in the workplace but also potentially address outbreaks of other diseases that are albeit less severe but nonetheless have an impact. I think that’s what we’re talking about.

[49:35] – Holly Foxworth

Absolutely. Let’s see. Diana had a really good question, too. What responsibility does the employer have for on-site temporary labor workers and what they need to be included on the vaccination list and testing record-keeping for the site employers? I think they’re asking, what about the employees that aren’t necessarily full-time? They’re just contractors there for a short time period. Do they fall under the same regulations as what others would? Dr. Michaels, do you want to take that one?

[50:06] – Dr. David Michaels

Yes. It’s my understanding. If they get you to above 100 employees and you have some responsibility for them, they are covered. My recommendation is to, though, tell the staffing agency that you only will accept vaccinated workers. You can do that. And that certainly solves all your problems. But they certainly are covered. If they’re in your work site, if for some reason they’re not vaccinated, then they have to be tested and they have to be masked.

[50:40] – Holly Foxworth

Okay. Steven asks if an employee goes to get vaccinated on one of their regularly scheduled days off, so that would be like a weekend. Do employers still have to pay the 4 hours?

[50:56] – Dr. David Michaels

My understanding is that they don’t. But Chuck, maybe.

[51:01] – Holly Foxworth

Okay. Chuck, do you have anything to add there?

[51:04] – Chuck Kable

I’m sorry, Holly, one more time. I missed it.

[51:07] – Chuck Kable

No worries. If an employee goes to get vaccinated and it’s on one of their regular days off, so that would be like a weekend in particular. Would the employer still have to pay for the 4 hours?

[51:18] – Chuck Kable

Oh, man. I mean, that’s one of those questions that is going to have to fared itself out. I mean, if they’re fulfilling a requirement for work, then the answer is probably yes. They’re going to have to pay for that time, even if it’s their day off.

[51:33] – Dr. David Michaels

One of the challenges here. This is a huge document that just came out. So we’ll be all readable carefully. But I think what they said if it’s on the weekend, they don’t have to jump off at this point. Thank you all for your interest in this. I want to thank the folks for the Axiom for putting this together. Absolutely. This is the beginning of a whole new process. We’ll see how it goes. If you want to see me on CNN in ten minutes, that’s where I’m headed. Take care, everyone.

[52:03] – Holly Foxworth

Yeah. We still have a few minutes. So we’ll continue with the Q & A. All right. Well, Freddie had asked, We have a production facility in California with a federally approved state plan. Do we have to follow this ETS, or do we wait for Cal OSHA to implement their own program? That’s a really good one. We’ve had a lot of questions about Cal OSHA, Chuck, or Dr. Cherry, either one of you want to take this one?

[52:30] – Dr. Scott Cherry

From my understanding, the way state and federal OSHA interact is the state OSHA can exist and function within the state, but their standards and guidance have to be, at a minimum, what federal OSHA is speaking on a certain subject. So I would say they need to at least start following the federal component. That’s what I would advise a client absent kind of legal or HR input there. But that’s kind of my gut feel from that perspective.

[53:10] – Holly Foxworth

Okay.

[53:11] – Chuck Kable

Yeah. Usually, the way the state plans work is the state plans get approval from OSHA to administer their own plans, and as part of administering their own plans, they have to agree to have a standard at least as strong as the federal standard. So, theoretically, if OSHA announces a standard as it has here, that preempts kind of state law, the state plan likely will prepare anything or any changes, modifications that need to be made to meet the minimum required. We’ll see.

[53:46] – Holly Foxworth

Okay. Let’s see the next one. That’s another contractor one. Sean was asking, Will contractors for private companies smaller than 100 employees that do contract work for the larger companies, will they have to submit their testing data to the larger corporations?

[54:06] – Chuck Kable

The standard is silent as to those kinds of issues. Right. I think that’s going to be more based on negotiations and expectations. And if the larger employer is a federal contractor, then you bet your butt you will.

[54:20] – Holly Foxworth

Love it. Okay. Let’s see. Next one, What’s considered proof of vaccination? Does it actually have to be a copy of the card, or would a self-certification be enough?

[54:35] – Chuck Kable

It’s very specifically listed in the standard. Let me just turn to the page and I can read them off. For those of you that want to know what proof is. But essentially, it is a copy of the vaccination card. It’s medical records, it’s public health records, and it’s any other official documentation. And then if you’ve lost any of those categories of information and can’t obtain it, then you go through with that kind of self-attestation approach where you’re signing all, you submit a piece of paper that says, I affirm that I’m fully vaccinated and you declare the penalty of perjury that it’s accurate.

[55:18] – Holly Foxworth

Okay.

[55:19] – Chuck Kable

Again, we’re going back to a little bit of the honor system in those circumstances. But don’t forget, the standard also requires the employer to educate the employees and let them know that if they’re misrepresenting, they’re subject to criminal charges.

[55:33] – Holly Foxworth

All right. Let’s see. Jane says our organization has over 50 separate units, total we have over 3500 employees, based on the 100 employee rule that would be for each separate unit or as a total? And he says each unit is part of the organization to operate separately. I think this may fall into the same response as you have a while ago that we spoke about earlier, Chuck.

[56:03] – Chuck Kable

I can’t provide legal advice to your organization about those kinds of issues. And that kind of a question just creates more questions in my mind to ask you to try to get to an answer. So what that tells me is you should talk to your own lawyers about it, to try to get an understanding of where that joint employer doctrine may create a challenge for you.

[56:22] – Holly Foxworth

Yeah. Clinton was asking. Actually, let’s go to Doug. Doug says, What is the emergency OSHA? What is it that the emergency OSHA is actually protecting us from?

[56:43] – Chuck Kable

Unreasonable risk of illness? And injury resulting therefrom.

[56:53] – Holly Foxworth

Maybe outbreaks as well. All of those things that come along with it.

[56:55] – Chuck Kable

Really what it comes down to is there’s a big push to relieve pressure on the health system. And so what we’re hearing from all of our public health officials, CDC, World Health Organization, is vaccination is a really good way to mitigate the impact on the health system by creating kind of all these hospitalizations, which is a national emergency. We have hospitals that are full of people that are sick. Everyone else that’s got other issues is not able to get health care. So that’s kind of a collateral issue. But fundamentally, on the OSHA Emergency Standard, employers have an obligation to make sure employees are free from unreasonable risk of illness or injury. And this standard is designed to create a framework through which employers can make sure that they’re mitigating the unreasonable risk of illness.

[57:52] – Holly Foxworth

All right. One last one here that we have. And actually, it’s pretty good. So Russ says the FAQs say that the ETS is projected to be in effect for six months if no extensions are made, does the standard nullify or does it continue until formally discontinued?

[58:17] – Chuck Kable

So typically the way the ETS approach works, if it’s not struck down, it’ll run through a six-month course, and they’re designed to become permanent with modification. So whether that holds true for this kind of a standard that’s very particular to a specific illness, remains to be seen. But I can tell you that I would think that specific administrative agency action would have to take place to prevent the six-month ETS from becoming a more permanent ETS down the road. But you guys can check me on that, talk to your own attorneys about it to make sure. But I believe that’s how it works or how it’s intended to work.

[59:02] – Holly Foxworth

Okay, well, I think we kind of made it to the end. What I will say is that there’s a ton of questions that are here. And so I will work with our team. We’ll look at putting together maybe a follow-up this next week so that we can get to this specifically and answer, provide some additional information. And obviously, things will be changing daily as we’re all working towards getting everyone compliant here. But I would just like to extend the opportunity to both Chuck and Scott if either one of you has any closing remarks that you wanted to part in gifts you wanted to give us before we wrap up for the day?

[59:35] – Dr. Scott Cherry

Maybe I’ll just close with I do know, to some degree, maybe based on that last question, there is some contention around this, and it’s obviously a mix of medical and political compromise, even on the medical side, things aren’t fully suited out. If you look at TV shows or movies, maybe back in the 50s and 60s where you see your coworkers kind of chain-smoking next to you. So I think this is also trying to remove that kind of risk. Obviously, there’s personal choice involved, too. But these are very challenging times. And I think this six-month period will kind of weather test the ETS and perhaps will give us insights into if OSHA decides to refine it or make it more functional based on new studies and on feedback from how employers are tolerating these practices. So this is a huge cultural shift.

[01:00:37] – Holly Foxworth

Absolutely. Chuck?

[01:00:41] – Chuck Kable

I don’t have anything to close with. I think there’s a lot to think about, a lot to digest. I’m happy that the standard is finally out so we can stop guessing. Now comes the hard part of preparing and understanding what this means for all of us. So we’re going to continue to do what we do and push out LinkedIn posts and provide webinars to get some information out there. But thanks everybody for participating today and you know, it’s a brave new world.

[01:01:17] – Holly Foxworth

Absolutely. Thank you guys for participating. That really is our commitment. It’s what drives us every day is to be able to make sure that we keep our head again and that we have a conversation about this every day. So we will continue to put out some additional information. We’ll do a follow-up, maybe this next week. I would say, though, that if you want additional information about one of those demos for the vaccine or the test fault, simply press the button there. There are also the resources there for the guide that’s available in addition to some of the other OCC programs. So if there’s anything that you need, please don’t hesitate to contact us, and we look forward to seeing you next time. Thank you for joining. Bye.