Nate Smith: (00:11)
Hi, and welcome to HR Trends, this is Nate Smith, your host today. I'm joined here with Ellen McCann an employment law and leave special and expert here at Unum. And we are here to talk about the latest development relative to the federal vaccine mandate. We just recorded a podcast recently, on the Supreme Court ruling that upheld the mandate for healthcare workers, but stayed it for various other categories of workers. And we released that podcast and sure enough, immediately overnight some things change. So here we are on January 26, recording a podcast to give you an update on what has changed.

Nate Smith: (00:52)
And with that, we're going to dive right in. If you're interested in the basics of the mandate, the developments and the news about it to date, I encourage you to look at our previous podcast and read our FAQ page. We are going to jump right into the most recent developments with Ellen and get started there. So if you want to catch up, go ahead and read, see the old stuff. But if you want the most recent current news, stay with us. So Ellen, to start with, what happened recently and what does that mean for the federal mandate?

Ellen McCann: (01:25)
So Nate, what happened was last night OSHA announced that it was going to withdraw its emergency temporary standard or ETS as it's referred to, that applied to employers with 100 or more employees. And just to give a little bit of background on why it did this and why it's important. When OSHA released its emergency temporary standard back in November, as the name would suggest it was an emergency standard. And so OSHA, it released that based on a finding that there was a grave danger in the workplace and that it didn't have time to go through the normal comment in a period that normally a federal agency has to go through when it's going to pass a new rule.

Ellen McCann: (02:10)
And so, because it was an ETS or emergency temporary standard, OSHA back in November released it, it was effective immediately. But a couple of important things happened at the same time. One was, although it was effective immediately, it was asking the public for comments and it was giving that opportunity to do the rulemaking and notice period. And so it was evaluating whether this emergency temporary standard should become a permanent standard. So yesterday on the 25th of January, OSHA announced that it was no longer going to be enforcing this emergency temporary standard. It was withdrawing it based on the Supreme Court decision to go ahead and stay that ETS pending litigation.

Ellen McCann: (02:55)
But it was very careful to say that, although we're withdrawing the ETS, we are still going ahead with evaluating whether this should become a permanent standard. So that notice and comment period that's gone on since back in November, that just closed in January, that is still going to remain in effect. All of those comments that were made are going to be considered by OSHA and OSHA is considering whether it will in fact, issue a permanent standard.

Nate Smith: (03:27)
Given the Supreme Court ruling and given the litigation history of the emergency standard. What do you think is likely that OSHA would issue? How would they craft a permanent standard that might apply and might stand up under such litigation?

Ellen McCann: (03:46)
So we're not sure exactly what OSHA is going to do with this permanent standard. We don't know if they'll narrow the scope of what was in the emergency temporary standard, but we do know that they were asking some pretty specific questions in that notice and comment period. And those questions and the answer those questions will likely influence what the permanent rule is. So some of those questions they were asking are around the scope of the mandate, should it actually apply to employers with less than a hundred employees, for instance? Are there other rules that should it be enforced even for vaccinated employees, such as masking requirements?

Ellen McCann: (04:25)
What's the impact of an employee having had COVID and their immunity? And should that be taken into account or should all employees be impacted and should all employees have to abide by the same regulations? And then they really looking at what are employers doing in this landscape? Have they passed policies, if so, have those policies been effective? So we don't know exactly what they will go ahead and pass. It is likely they'll pass something that is maybe a little bit more narrow than what the ETS said. And they may even pass something that is specific to certain industries where we've seen the highest rates of COVID infections, such as healthcare, industries where employees are in very close quarters, things like that.

Ellen McCann: (05:12)
So we don't know exactly what they'll be passing. We do know the questions that they ask the public and that they wanted input on. And they will go ahead and take those comments of course, and evaluate whether they should go ahead and enforce the permanent standard. And if so, what that will look like.

Nate Smith: (05:30)
And you led me right to one of my follow up questions, which was, how does this impact the requirement for industries like healthcare workers, where the Supreme Court ruling did not stay that and that mandate stayed effective? Does this move by the federal government change the healthcare mandate in any way?

Ellen McCann: (05:51)
So it doesn't change the healthcare mandate that exists right now, which was passed by the Centers for Medicare and Medicaid Services, so the CMS mandate. That mandate, as you may recall, and we talked about this on our last podcast, the Supreme Court upheld CMSs ability to enforce that mandate while the lower court litigation was proceeding. That mandate applies to any healthcare provider that accepts funds from Medicare and Medicaid. That mandate is right now still enforced and it's obviously subject to challenge in that lower court litigation.

Ellen McCann: (06:25)
But while that litigation is pending, CMS can go ahead and enforce that. So, that still exists regardless of what happens here. What we may see OSHA do is pass a mandate that applies to all healthcare providers, even those that do not accept funds for Medicare or Medicaid. So remains to be seen exactly what they will do, but they do have the ability, of course, to focus on specific industries. And that may be what we see is the next step for OSHA.

Nate Smith: (06:57)
Yep. And as we talked about it in the last podcast, obviously there's still the patchwork of local, and state and jurisdictional vaccine requirements, as well as prohibitions against vaccine requirements. None of that local level of compliance state and jurisdiction level is impacted by federal rule being removed.

Ellen McCann: (07:21)
It's not impacted right now. So we've seen some states have obviously past mandates that say that employers can't ask for certain information or can't require, excuse me, employees, to become vaccinated. Other states for certain industries have passed vaccine mandate, we've seen some cities get into the mix as well. When it will be impacted potentially is if and when OSHA issues a permanent standard. At that point in time, states are going to have to follow that standard.

Ellen McCann: (07:53)
Now, there are some states that have their own state level OSHA programs, those states will be require to pass standards that are at least as protective of employees as the federal standard within 30 days of OSHA issuing a permanent rule. So right now we're in kind of a lull, if you will, or period where states can pretty much do what they please. But if OSHA issues a permanent standard, that's going to have some impact on what states can do at that point and time.

Nate Smith: (08:24)
That makes sense. So what are employers left to do here? Obviously, vaccine mandate has not gone completely away. It still stands for the healthcare industry, there's still state and jurisdictional level mandates to watch. But for a company that might feel like, well there's not a mandate, I don't think I fall into any of those categories, I don't need this. Does that mean that vaccine testing programs are done for, or are companies still looking at ways to do this even outside of those areas that's still a mandate?

Ellen McCann: (09:03)
One thing companies need to remember, and we mentioned this on our last podcast, but it bears repeating is that there is still a General Duty Clause under the Occupational Safety and Health Act, which is the OSHA Act that OSHA is actually the agency that enforces. That General Duty Clause applies outside of any mandate that we're talking about right now and requires employers to provide their employees with safe work sites. That still exists, all employers are subject to that. What employers have to decide is how do I fulfill my obligation under that General Duty Clause? Is it through a vaccine mandate, is it through a testing program? Is it through some other kind of safety protocol?

Ellen McCann: (09:45)
So employers really need to sit down with their counsel, talk about what state or local requirements may apply to them, but determine what their own safety protocols look like and how they can keep their employees safe. The other consideration they want to undertake is, do my employees feel safe coming back to the office if I don't have some kind of a mandate or some kind of a policy that provides that employees have to be vaccinated?

Nate Smith: (10:10)
Great. This has been very helpful. Before we wrap up Ellen, any final thoughts on where we are with the vaccine mandate and best path forward for employers?

Ellen McCann: (10:20)
Employers really need to evaluate how they want to move forward here and what kind of environment they want to provide their employees. And so employee safety really should be top of mind as they're looking at what types of safety protocols they want to go ahead and enforce. And a study came out yesterday by Gartner, where they surveyed companies and one third of the companies that they talked to still plan to implement a vaccine mandate despite the Supreme court issue, despite the fact that the ETS has been withdrawn.

Ellen McCann: (10:52)
And so at least those employers that they've talked to still feel that that's the best course forward for their workplaces. And so employers really have to again, sit down with their council, talk about their company culture, what kind of environment they want to have, and what is the best path forward to ensure that their employees are safe and that their employees feel comfortable coming back to work. And that may be a different answer for different companies depending on their workforce, the types of facilities they have and what their company culture is.

Nate Smith: (11:25)
Well thank you, Ellen. That's great information and this has been a great update. Obviously, we'll continue to post updates as rules and rulings develop. And until then, this is Nate Smith with HR Trends, signing off.

Speaker 3: (11:47)
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