Rightly Sizing the (Potential) ETS Elephant: Parsing § 1910.501(b)

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Post By: Laurence O’Donnell, Director of Compliance at Superior Bowen

The publication of OSHA’s COVID-19 Vaccination and Testing ETS—a prolix 154 pages in Federal Register fine print—and the litigation that followed immediately in its wake have painted compliance professionals into an unpleasant corner: begin implementation of the new standard in line with the December 6th and January 4th deadlines, or wait and see if the storm passes.

With the first deadline merely days away, the litigation remains unresolved. Will the Fifth Circuit Court of Appeals’ initial stay and its spirited affirmation with a further order “that OSHA take no steps to implement or enforce the Mandate until further court order” be upheld—or even made permanent by vacating the ETS altogether? Or will OSHA’s emergency motion sway the Sixth Circuit Court of Appeals to dissolve the stay and the injunction?

Does OSHA’s extending of the comment period to 45 days (19 January 2022) portend anything significant?

At this point only one thing is clear: which way the winds of litigation will blow, nobody knows.

What is prudent in the meantime? This remains a hard question.

In my present post (private, civil construction contracting firm) I lean toward the be prepared end of the risk assessment spectrum. As part of my strategy for determining what is prudent amidst the shifting sands, I decided to tackle drafting a policy that meets the written policy requirement (29 CFR 1910.501(d)).

In this process I have discovered two things that I thought were worth sharing here with others who are preparing for potential ETS compliance.

First, the written policy for paragraph (d) is no small task. The OSHA-provided template is decent as a starter, but it requires significant adaption and expansion. With including the required materials from (j), my working draft of the policy is already 6K words (~20 pages). Adding the procedures will make it even longer.

Do not expect to plug-and-play the template with minimal effort. I am finding that the initial drafting and the subsequent consensus review and the rollout require concerted team effort.

Second, parsing § 1910.501(b) on the scope and applicability—in particular the exclusion for outdoor workers in (b)(3)(iii)—leads me to believe that the implications of (b) deserve wider attention by employers if the ETS is upheld and implemented; for, (b) significantly lessens the scope and burden of compliance for companies with remote employees or outside workplaces.

The main reason (b) deserves a closer look is that it introduces a distinction between counting employees for purposes of the 100-employee threshold and determining whether individual employees are liable to the ETS requirements based on their workplace situation. OSHA claims that, using this distinction, there may even be whole companies who are considered “covered employers” according to the threshold but who nevertheless have no duties under the ETS.

(b)(3) asserts, “The requirements of this section do not apply to the employees of covered employers,” and then it goes on to offer three classes of employees. Look with me at two terms in this phrase.

What does “this section” mean? 51 times throughout the ETS, this phrase refers to § 1910.501 in toto—the whole ETS.

Then what does “the requirements of this section” mean? The same thing: § 1910.501 in toto—the whole ETS including all its requirements.

Therefore, (b)(3) is asserting: “The requirements of this section [i.e., § 1910.501 in toto/the whole ETS] do not apply” to three classes of employees.

But wait, doesn’t OSHA’s FAQ make clear that employers must include all employees—even the employees in the excluded classes in (b)(3)—for purposes of determining the 100-employee headcount threshold? Yes, this is correct (see FAQ 2A).

However, there are two reasons why the inference that, if I count an employee for the threshold, I must automatically include that employee in the whole gamut of onerous ETS requirements, is incorrect. We’ve already seen the first: it goes against the plain wording of (b)(3) (and (b)(2)).

The second is found in that Federal Register fine print. In its preamble to the ETS, OSHA directs employers to determine the headcount threshold for employer coverage under the ETS separately from determining whether individual employees are liable to the ETS’s requirements:

The determination as to whether a particular employer is covered by the standard should be made separately from whether individual employees are covered by the standard’s requirements, as described by paragraph (b)(3) (e.g., some employers may be covered but have no duties with respect to some of their employees under this standard). (p. 61514)

That “but have no duties with respect to some of their employees” bit is significant.

A couple pages later OSHA gives an example to re-assert this point about the employer having no duties towards certain classes of employees:

In some cases, it may be true that the standard applies to an employer but the employer would not have to implement its provisions at all because all of its employees fall within exemptions in paragraph (b)(3). Going back to the example of the large landscaping contractor, if all indoor workers either work from home or in locations where no other individuals are present, and all outdoors workers work exclusively outdoors and do not drive to worksites together in a company vehicle, the employer would be covered by the ETS but not required to comply with its provisions. (p. 61516)

Take a moment to soak in that “not have to implement its provisions at all.”

I’ve listened to many attorneys present on the ETS, and have read a great deal of legal alerts and industry updates. Yet I haven’t yet heard anyone discuss the implications of (b) and the distinction it creates between covered and non-covered employees with respect to the requirements. This remains surprising to me given that having no duties to non-covered employees under the ETS even if the employer meets the 100-employee threshold is significant.

At a contracting firm like mine with a large, unionized labor force that primarily works outdoors, the potential compliance burden of the ETS is drastically affected by parsing (b) along the line drawn by OSHA. In addition to the reduced compliance burden internally, the potential collective bargaining burden (see the NLRB memo) hinges on parsing (b) as well.

I suspect the same may hold true at many other types of companies. Perhaps then taking a closer look at (b) is a prudent step as for those of us trying to rightly size the potential ETS elephant.

About the Author: Laurence O’Donnell ThM is the director of compliance at Superior Bowen in Kansas City, MO. He specializes in public works contract compliance, policy development, and E&C programs.