OSHA’s Private Employer Mandate

Health Law Talk Presented by Chehardy Sherman Williams

+ Full Transcript

Rory Bellina (00:15):
Hello everyone and welcome to Health Law Talk, presented by Chehardy Sherman Williams. Before we get started, please be sure to subscribe to our podcast and follow us on Facebook, Twitter, LinkedIn, and YouTube – linked in the description below. We hope you enjoy this episode. Good morning everyone. This is Roy Bellina and special guest today, Chris Martin in the studio. Today’s topic is gonna be a part one of a three part series on the OSHA mandates that have been coming out on vaccines. There’s one for private employers, there’s one for federal contractors, and there’s one under CMS for healthcare. So, Chris, welcome to the show. Thank you for joining us, and thank you for taking a deep dive into this and, and being available to talk with us about it.

Chris Martin (01:07):
Glad to be here,

Rory Bellina (01:08):
Rory. Thank you. Thank you. So, Chris, why don’t you tell our listeners, I think it’s the first time you’ve been on, so why don’t you tell our listeners a little bit about yourself and then we’ll, we’ll jump into today’s topic.

Chris Martin (01:17):
Sure. I’m a healthcare lawyer here at Shai Sherman board certified as is Rory recently. Thank you. and we do a lot of regulatory and compliance work in that space and have gotten a lot of inquiries about these mandatory vaccines from our clients. And so we thought we would try to educate ourselves and the clients a bit more on the nuances and details of these hundreds and hundreds of pages of new regulations.

Rory Bellina (01:49):
Sure. And, and from what I understand, and, and I think what we’re all looking at is there’s, there’s three of these, right? There’s one for private employers, contractors, and then CMS healthcare orders. Can you give us like a, a brief synopsis of what this three part series is gonna look like for us?

Chris Martin (02:05):
Sure. Today we’re gonna talk about the osha private employer mandate, which applies to any private employer in the United States with more than a hundred full-time or part-time employees. The second or, or the other, the next one will be probably on the cms, right? vaccine mandate, which applies to any healthcare providers who are certified or who take Medicare or Medicaid as a, and it’s gonna be a condition of participation. So it’s a very powerful enforcement mechanism by cms. It’ll apply to almost any kind of healthcare provider except probably a physician office. Wow. and then the third one is the federal contract. Federal. If you’re a federal contractor with the government, that’s the third mandate.

Rory Bellina (03:00):
Okay. No, I mean, these are, That’s great. And I think you mentioned, you know, I’ve gotten a few calls. I know you’ve been busy on this as well. it seems that the two big buckets that we’re facing right now are the private employers with a hundred more employees like you mentioned, and then, and then healthcare. So let’s just jump right into it. I know you’ve done extensive research on this mm-hmm. and, and the private employer one especially cuz that seems to capture kind of a lot of the working force. But why don’t you tell us a little bit about maybe the, the concept behind, you know, what the, the federal government’s trying to accomplish and, and, and this first bucket that they’re, that they’re kind of targeting per se.

Chris Martin (03:38):
Sure. So as you know, OSHA regulates safety in the workplace. And this, this new mandate is really comes out of OSHA’s authority to regulate those circumstances where there’s a grave danger to safety. And the government has decided that the covid virus is such a grave danger that permits OSHA to regulate in this manner. And

Rory Bellina (04:13):
ConEd and I did an episode about this a few, probably a month or so ago, when this was all kind of in a, an interim rule and it wasn’t finalized. But this, if, correct me if I’m wrong, this is the final rule that is, is finalized now and it’s, it’s going to go into effect.

Chris Martin (04:28):
It, it is in effect. It, it went into effect November the fifth.

Rory Bellina (04:32):
Okay. It’s, So if you, a week ago, Okay, a week ago,

Chris Martin (04:35):
The Fifth Circuit Federal Court of appeals within days stayed okay. Halted, its enforcement citing, I think they said grave constitutional issues. so right now it is not in effect, but it did go into effect on November the fifth. I think one point to make is it’s a temporary rule. It expires in six months unless there’s a permanent rule that replaces

Rory Bellina (05:05):
It. Interesting. Okay. Okay. So it’s only for six months and that, that clock starts, I believe you said on November 5th? Fifth. So, you know, I’m, I’m interested and I think our, our listeners are interested is we’re kind of gonna go over the basics and then get into some of more of the questions. But let’s start with the, the most important one I think is who does this apply to?

Chris Martin (05:25):
So it applies to any private employer in the United States. Any private employer could be a law firm, could be a trucking company, could be any, as we said, private employer with over a hundred employees, they count a hundred employees to include full-time or part-time employees. They don’t count independent contractors. So if you have a vendor who you don’t employ as a W two employee, they don’t count.

Rory Bellina (05:56):
And I read also that they also don’t in count, I, I believe they do, they do or they don’t count seasonal or temp employees.

Chris Martin (06:03):
They do count temp employees. Okay. They don’t count remote employees. I see. So employees who never come into the office they, they get example they used was, or, or employees who work exclusively outdoors. I think they cited the landscaping company. Okay. As an example. But even that landscaping company, if they were to have a meeting of all the landscapers inside their office, then that disqualifies Wow. That, that quote outdoor employee, cuz they’re not exclusively outdoors.

Rory Bellina (06:41):
So this really is gonna capture millions of Americans Yes. Under, under this scope. And we mentioned two dates. The first one was November 5th and then also was reading December 5th. the December 5th seems like a big date. also as well, can you go into a little bit of detail of what has to be done for our listeners by December 5th?

Chris Martin (07:00):
Sure. By December 5th, 2021, an a private employer has to have established a vaccination policy, written policy that, and the requirements for that are the employers have to report positive COVID 19 tests. They have to remove positive covid 19 employees, those employees who have tested positive for covid 19 from the workplace. And they they have to provide the employees with certain information about this emergency, temporary standard and policies and procedures and also protections against retaliation. and interestingly, they have to provide the employee with information about criminal penalties that may apply if an employee lies.

Rory Bellina (07:58):

Chris Martin (07:59):
Wow. About or, or produces false documentation.

Rory Bellina (08:03):
So we’re talking, we’ve said now November 5th, which is when this kind of the, the first date, and then we talked, we said December 5th, and then there’s a third date January 4th. And I believe that has to do with the vaccination or test policy where these employers have to have that in place.

Chris Martin (08:21):
Yes. Yes. Okay. So, so the,

Rory Bellina (08:23):
A very short turnaround time, because like you said, this just came out as a, as a final rule per se. Although it’s an emergency rule, this just came out a week ago and employers have to have this policy in place by December 5th, and then they’re testing policy in place by and start testing by January 4th.

Chris Martin (08:41):
Yes. Okay. so the big picture here, Rory, is OSHA is saying either get your employee base tested and, and we’ll go into more of exactly what that means. get your employee base vaccinated or if they’re not going to be vaccinated, they have to be tested at least weekly.

Rory Bellina (09:07):
Wow. Wow. Okay.

Chris Martin (09:09):
So you don’t have to have your employee base vaccinated fully if you don’t choose to do that. You then have to test them at least weekly. That’s gonna be a lot of testing if you have a lot of employees.

Rory Bellina (09:21):
Yeah, It, it, it really does sound like it. And, and I know you mentioned kind of who it, who it includes and who it doesn’t. I think that’s gonna be a very spec, I’m sorry, fact specific question for our clients is if they want to know, you know, do I meet the hundred or not? I think it, it’s gonna take a lot of review to see, cuz you said it was full-time employees part-time, not independent contractor. But then it does include, it, it there’s some discrepancies on temp employees or, or you know, whether they’re inside or outside. I read that franchisees or not included in the whole umbrella, there are, if you have a corporation with numerous kind of sub corporations under your umbrella, there’s questions regarding does it, how does that count? And so just the, the, the, the big thing is does this apply to me or not? Right. I think that’s, that’s, that’s a complicated question in itself. And you really only have, you know, two or three weeks to figure that out because you have to have this policy in place or else theoretically you could be fined by osha. Is that That’s correct. That’s

Chris Martin (10:20):

Rory Bellina (10:21):

Chris Martin (10:21):
Right. Okay. One of the issues is, say if I have a company that has 90 employees right now, but I may be hiring 10 more Yeah.

Rory Bellina (10:30):
For the holiday season or you’re ramping up or, or, or just turnover.

Chris Martin (10:34):
So the, the the rule says if at any time while this ETS is in force in, in effect, which is for the next, well at least six months, if at any time you reach that hundred threshold, and, and even if you, then if you reach the a hundred threshold and then went back down below a hundred, you still come under the reach of this mandate. Cause if at any time during those six months you hit that hundred mark, you’re in.

Rory Bellina (11:06):
So at that time you have to follow this, you have to get your policies, procedures, everything in place.

Chris Martin (11:12):
And once you’re in, you’re in. Really. So, so if you hit that hundred employee mark and then lay off 50 employees, you’re still, you’re in in

Rory Bellina (11:22):

Chris Martin (11:23):
Wow. Which, which is pretty important. Let’s,

Rory Bellina (11:28):
Let’s talk first, I guess maybe we could break this up in, into some segments for our listeners. Let’s talk about, cause it seems that the, the goal of this policy is vaccination and testing. Is that, is that a fair assumption of, of what the intent is?

Chris Martin (11:43):
Yeah. That they’re saying this, this, the mechanism to keep our workforce safe. Okay. Is vaccination and testing. Okay. and so remember this is an OSHA requirement, OSHA’s about workplace safety. Right. And so you know, as an aside, I was talking to a lawyer yesterday who isn’t, does a lot of OSHA work, and she was saying OSHA only has like 3000 federal inspectors in the whole country. And it, you know, going into workplaces with under the broad scope Sure of this mandate, those 3000 inspectors are gonna be really busy. Sure.

Rory Bellina (12:26):
I don’t, I

Chris Martin (12:27):
Don’t know over the next six months

Rory Bellina (12:28):
How they could, they could accomplish that. But that’s, that’ll be for another, that’ll be for them to figure out as long as, as we advise our clients to comply. So, you know, I I think we’ve kind of covered who it does and it, it seems like it’s very employer specific on whether you fall into, fall into it or not. But let’s talk about the first bucket of your vaccinated employees. What does OSHA consider as vaccinated? From what I’ve understood, they consider they’re not considering a requirement for boosters. Meaning if you’ve received two of Pfizer or Moderna or one of Johnson and Johnson, you’re considered vaccinated. They’re not gonna make you get a booster to be considered that. Also read that that it, there’s, there’s gonna be some strict requirements on the employers as far as what they’re gonna have to do to verify your vaccination. Yes,

Chris Martin (13:24):
Yes. The employer has to keep a roster of all employees and their vaccination status. And so if OSHA comes into your workplace, the first, the first things they’re gonna wanna see is, let me see your policy and let me see your records on, on, on who’s vaccinated and who’s not. So it’s a gonna be a lot more record keeping. Sure. And these, and these vaccination records, Rory, are medical records,

Rory Bellina (13:56):
So they’re not, they’re not something that, again, I definitely want to get into that, but that’s some, that’s a whole other area of concern that employers maybe have never dealt with before. I mean, unless you’re in the, the healthcare field or something that, that requires you to ask your employees about their medical records, this is something that could be brand new to someone in HR or, or a company that doesn’t even have an HR department trying to figure out what to do with these. And, and you mentioned the example of OSHA walking in. So the first thing, you know, this will be a worst case for, for everyone, but assuming that that, that that OSHA walked in, they’re gonna want to see your policies and procedures, your vaccination, efficacy, safety and be, I mean, they’re gonna wanna see a lot of things, but, but it seems that on a very short timeline December 5th, that’s when they’re going to, that’s when they’re gonna wanna see these documents. Now for the vaccinations, what are they accepting as proof of vaccination? Is it, is it the card? Are are employers allowed to look at, in Louisiana we have the health wallet app mm-hmm. where you could see on an app, yet they vaccinated. I mean, I assume they’re gonna, you know, accept those. I was just curious, you know, how far does, is a company gonna have to go to verify all of their employees are vaccinated?

Chris Martin (15:13):
Well pretty far the, the acceptable proof of vaccination includes a record of immunization from a healthcare provider or a pharmacy. So that would probably be your, your little white C card. Right. I think LA Wallet would qualify a copy of, of medical records. You could produce a medical record saying here’s where it shows I’ve been vaccinated. A copy of immunization records from public health or state immunization information system. So the state keeps records. You could access those or any other kind of official documentation from a healthcare provider. if, if the, if the employer or the employee can’t prove proof of vaccination, the employer has to assume they’re not vaccinated,

Rory Bellina (16:08):
Really. Mm-hmm. , and then they would fall under the second category of masking and, and testing and testing. Correct. Which we’re, we’re gonna get to later in this episode. So your HR employee, your HR person or someone on the, on the higher level is going to have to start checking all this. Right. And, and storing this information, making some sort of spreadsheet, I guess, and, and keep it kind of rolling to as you hire people and fire people.

Chris Martin (16:35):
No, that’s right. That’s right. So, I mean, you know, there’s, from a practical standpoint, we really don’t exactly know how this is gonna play out. But, you know, the, the, the easiest way obviously would be to have your entire workforce vaccinated.

Rory Bellina (16:53):
Sure. That’d be the easiest. Right. From a, from a employer standpoint, that would be best case for, for the employer because then they’re done with this

Chris Martin (17:01):
Person, they’re done. You don’t have to do weekly testing, you don’t have to have wearing face coverings. That’s a pretty onerous, that’s a a hundred percent compliance. Right. That’s, that’s one, one method. Another approach that an employer could take is to say, I’m not gonna push this mandate of vaccination on my employees cuz maybe too many of ’em will quit or decide to retire. So I’m gonna set up at the front door or as they walk in every day testing and I will just test the heck out of every employee once a week.

Rory Bellina (17:40):
So let’s get, let’s jump right into that because that that sounds more onerous and, and there’s obviously

Chris Martin (17:46):

Rory Bellina (17:47):
And expensive Yes. Why people do and and don’t want to get vaccinated. And that’s a, we’ve talked about that on numerous episodes. Let’s get into, okay, so we’ve got the bucket of employees that, that aren’t vaccinated. So what does OSHA require under this private employer mandate for employees that are, that, that fall into the category but that are not vaccinated?

Chris Martin (18:11):
So those, they, those individuals have to be tested weekly.

Rory Bellina (18:16):

Chris Martin (18:17):
Weekly at a, at minimum of seven days. And what kind of 37 days, what

Rory Bellina (18:21):
Kind of test does OSHA accept?

Chris Martin (18:23):
So OSHA in their regulations, they have a list of, of tests that are acceptable,

Rory Bellina (18:29):
Which I presume are, they have to be FDA approved. And, and I I read this, that there’s some discrepancy on will they accept at home tests. And it’s also, I believe the burden of the employer to verify that an employee, if they do take an at home test, that it it’s accurate that it, that it was negative. That, you know, if ultimately they found out that the employee says that they’re taking an at home test and it’s negative and it’s not, they could still hold that employer liable for that.

Chris Martin (18:59):
Yes. let me see if I can find the specific provision, because one of the, one of the testing requirements, Rory, is that, that, that if, if the employee’s gonna self-administer a test, it has to be quote, proctored

Rory Bellina (19:19):

Chris Martin (19:20):
By the employer. So really what does that mean exactly?

Rory Bellina (19:24):
So if I’m an employee that’s not vaccinated and I fall under this weekly testing, I would either have to go to a facility and I would obviously get an official result. Most of ’em are coming through email that I could provide to my employer, or I would have to go to the workplace and do a nasal swab in front of someone and, and make them wait and watch for the results with me

Chris Martin (19:47):
Or Yes. Or over telehealth. You could do it over Zoom and the employer has to watch the employee swab their nostrils and actually witness the test being administered.

Rory Bellina (20:01):
But what are the, I mean, I could think of a, a ton off the top of my hand, but the, just the burden involved and the time expense resources, Some companies might have to hire someone as their covid person essentially. Sure. For lack of a better term, just to a big company at least just to be in charge or, or outsource it or contract with someone to come in on every Monday and do this. This seems to be, I i we understand the government’s intent, but this seems to be a lot for employers that are not prepared for this. Absolutely. And they don’t have policies in place.

Chris Martin (20:32):
Absolutely. What, what OSHA is concerned about is they won’t allow a self-administered self read test

Rory Bellina (20:42):

Chris Martin (20:42):
Unless it’s observed by the employer or the, the, the quote they use is other authorized telehealth proctor.

Rory Bellina (20:51):
Interesting. Okay. And I also read on the, on the testing side that an employer, an employer may pass the costs off of testing along with the employee unless there’s a state regulation that says that you, that you can’t, I mean, I, I know that a lot of these facilities that are doing testing, it’s free or low cost based on, you know, where you go. The at-home tests I know are, are 20, $30 each to have to do this for every employee every week. I mean, this could become a huge burden for companies. Do you think that the, I know what we’re trying to speculate, but do you think that OSHA’s intent or one of their intents maybe is to make this so burdensome to push more people to get vaccinated?

Chris Martin (21:33):
Yes. Okay. I think that’s a good point. I think, I think OSHA’s trying to say, if you are not going to have your employee base vaccinated, we are gonna make you jump through a number of hoops

Rory Bellina (21:47):
And spend a lot of money, time,

Chris Martin (21:48):
Spend a lot of money and time to do an alternative that we think will be sufficient to keep your workforce safe.

Rory Bellina (21:55):
So this is almost the, the carrot and the stick approach of, we’ll give you the carrot for the vaccination, but kind of the stick unfortunately for the, for, for the testing side and, and also read, which I think is very interesting and I think a lot of our clients want to know is what, what does this policy say about vaccinations and testing and pay time off or sick time off?

Chris Martin (22:18):
So you made a point that the, the ETS that this mandate does not require the employer to pay for the cost of the test, but they’ll, we can get into, we need to talk before the end of this about the exemptions. Okay. The medical and religious exemption. But the employer under this mandate has to provide at least up to four hours of paid time off to be tested. Wow. Okay. So is that, is that four hours every week?

Rory Bellina (22:46):

Chris Martin (22:47):
And then if, if the employee has an adverse reaction to the vaccine and has to miss work, Okay. The employer, it’s interesting, they don’t have to pay for that time off, but they can, they can make the employee use their pto, they’re paid time off or their sick leave. So

Rory Bellina (23:05):
Up to four hours to get vaccin vaccinated

Chris Martin (23:08):

Rory Bellina (23:08):
The front end to get vaccinated. And then if you have an adverse reaction, they have to give you time off. But it seems it’s unclear or Yeah, they might have to allow you, allow you this time off, but they could dock your saved pto.

Chris Martin (23:22):
Yes. And it, there’s, it’s a little unclear cuz we, we may be waiting for some more guidance, but it may be as much as up to two days

Rory Bellina (23:30):

Chris Martin (23:30):
Off if you have an adverse reaction to the vaccine.

Rory Bellina (23:34):
Wow. Wow. That, I mean that, again, I’m, I’m, I’m just thinking of the, the person that sits in hr you know, a one man or one woman show who’s used to dealing with, you know, not this and now their head’s gonna explode because they’re going to have this spreadsheet and you know, Chris is va you know, Chris is not vaccinated, so we have to test him every Tuesday and we have to test Rory every Thursday. And, but, but Conrad is vaccinated so he’s good. I mean, it, it seems to be you’re gonna have, you know, colored cells. I can just, I just imagine the administrative hassles that are gonna go involved, this is gonna be a full-time job for someone.

Chris Martin (24:12):
Yeah. And that’s one reason OSHA picked the hundred employee threshold.

Rory Bellina (24:17):
I was curious about that

Chris Martin (24:18):
Was because the thinking was just as you said, and by the way, I am vaccinated,

Rory Bellina (24:23):
I am too just for the, for the audience

Chris Martin (24:26):
. but the, the thinking was if you’re, if you have an employee base of at least a hundred, you’re gonna have sufficient resources to meet these requirements. But that companies below a hundred, it might be a, a real burden.

Rory Bellina (24:39):
Okay. So they’re not as, they don’t want to crush the, the, the small smaller operations that, you know, can kind of administer this on their own, but for the bigger ones, they’re putting this into place. Yeah. Okay. That makes sense. Well I think it’s really interesting that, like you said there, to get vaccinated, they have, they can give you up to four hours paid time for your vaccination and reasonable time and paid sick leave to recover, but for testing not a paid time off requirement. That that, that’s very interesting to me that they’re gonna, they’re gonna, they’re again, they’re incentivizing you to get vaccinated. Yes. I think that, I think that we keep going back to that. That’s the goal. Yeah. So what’s the other part? If you’re not vaccinated, you gotta get these testing masks still

Chris Martin (25:23):
You, if you’re not vaccinated, you have to have weekly, you have to have testing a minimum of seven at once every seven days. And you have to wear a face covering while you’re in indoors. And they have pages of definitions of what a face covering is.

Rory Bellina (25:38):
And that’s regardless of the state that you’re in, cuz for most of our listeners in Louisiana, but, but depending on which state you’re in, Louisiana recently lifted their mass mandate. But this is going to

Chris Martin (25:49):
This preempt,

Rory Bellina (25:50):
This is gonna preempt that.

Chris Martin (25:51):
Yes. Okay. That’s one of the, the basis of this whole regulation is that this is a federal regulation under the supremacy clause of the constitution and it preempts any state or local ordinance that contradicts it.

Rory Bellina (26:04):
So this is almost another, another stick that mm-hmm. , you know, so many people were, were split on wearing masks. And look, I I, I wore mine. I didn’t enjoy wearing it. It was a pain. I would forget it all the time where it was dirty or a drop on the ground or I, I just didn’t like wearing it, but I did it even though I was vaccinated. So this is another kind of stick per se that, that OSHA is, is putting out there for people that aren’t vaccinated. Correct.

Chris Martin (26:29):

Rory Bellina (26:30):
Correct. Okay.

Chris Martin (26:31):
Okay. You want to talk about the medical and religious?

Rory Bellina (26:33):
I do, I do, absolutely. So, and this is medical and religious, I believe it. They qualified under both under getting the vaccination and testing. I think there’s some, you can have some exemptions against testing as well.

Chris Martin (26:46):
Yeah. Let’s talk about the vaccine first please. So under, there are they, the, the mandate does provide exemptions for employees if they have a, a legitimate medical reason to request accommodation from the employee or if they have a, a religious accommodation. So the first, the medical accommodation is under the Americans with Disabilities Act. Okay. So for u HR folks out there, if the medical exemption has to be handled just like any other disability accommodation that you would be handling and and so there’s an analysis that you can go through, we can help you with that analysis

Rory Bellina (27:34):
Because I know that’s a very complicated kind of analysis on, on, on medical exemptions. Yes.

Chris Martin (27:40):
And that’s under the Americans with Disabilities Act and we don’t have time to go through all the nuances of that, but maybe that, that’s probably a whole podcast in and of itself. Sure, sure. the religious exemption is under Title seven of the Civil Rights Act of 1964. and, and so there’s specific procedures on how the employer, if the employer is presented with one of these accommodations, what they, they have to provide forms for the employee they have, and then there’s a sort of a due diligence analysis that they have to do to make sure these, these requests are legitimate. So

Rory Bellina (28:22):
Let’s assume that someone does have a legitimate medical or religious request exemption, however it’s classified. What happens then are what are they required to do or not to at that point for, for getting vaccinated?

Chris Martin (28:35):
So the big picture is generally if it’s a legitimate medical request, the, under the Americans with Disabilities Act, the employer has to evaluate and determine whether the employee is entitled to reasonable accommodation. Okay. And so the what, So, so they have to go through that analysis.

Rory Bellina (29:02):
Are they required to get weekly tested and wear a mask

Chris Martin (29:06):
That that could be the reasonable accommodation if the employee has, is allergic to the vaccine? Sure. So the, the, the medical accommodation doesn’t, doesn’t exempt the employer from having to do anything if, if, if the, if the medical exemption precludes that employee from getting the vaccine, the reason they still have to test.

Rory Bellina (29:33):
I see. So even if you’ve got an exemption against the vaccination or getting vaccinated, you still would have to get test and I, I assume you’re probably gonna still have to wear the mask. Yes.

Chris Martin (29:43):
Unless there’s one nuance there. Unless that medical exemption also applied to the test or the mask. Okay. For some, for some reason.

Rory Bellina (29:53):
So you would have to have something really Okay. Very, very thorough. That would cover a, a serious medical accommodation or a religious accommodation to cover all three. But it sounds like, like you mentioned, I know I, I’ve had a client reach out to me that had an a, an allergy issue and, and was successful in getting a medical exemption from the vaccines. but that client is required to wear a mask. Right. And so I assume that this is, you know, this is going to be the same way. Which, you know, again, is, is just another, another thing that, you know, someone in in HR is gonna have to deal with as far as, you know, making sure that that person does have is wearing a mask properly.

Chris Martin (30:35):
And, and we can help with with the client in trying to come up with some reasonable accommodations. Cuz those accommodations could be you move the employee to a different site where they Sure. It’s more remote. You some drastic one would be you put ’em on medical leave. Sure. and so there’s a, there’s a some range of options that, that you can use to, to, to reach that medical accommodation.

Rory Bellina (31:07):
And one thing interesting that I’ve read in the ETS is that it does not provide any exemptions to the requirements based on natural immunity or the presence of antibodies. So they’re very strict on, on what they’re going to allow. Now I did read that they are going to allow that if you did have covid within the past 90 days that there was gonna be, I believe that would’ve been, that would’ve been an allowance under not being vaccinated. But then the clock would start over. Right. So again, I keep going back to my example of the, the poor HR person sitting in their office. This is a lot.

Chris Martin (31:41):

Rory Bellina (31:42):
Is. It it’s a, it’s, it’s a lot. And you know, I I think we’ve covered kind of the big basics and, and obviously if anyone has any questions they could contact us. But I’d like to kind of spend the last few minutes of our show just talking about what your, what your thoughts are on a, from, from a healthcare compliance and, you know, bringing in the kind of the healthcare side of this or the patient or really employee privacy side of this. I mean, what effects do you see this having on employers? You know, kind of just big picture.

Chris Martin (32:13):
Well, as you mentioned earlier there’s a lot of industries that the employers not used to delving into the medical condition of their employee. Now that employer has gotta basically keep medical records of each employee,

Rory Bellina (32:29):
Which they’ve probably never done or aren’t set up to do securely.

Chris Martin (32:32):
Right. And, and it has to be accurate. It has to be current and as you said, it’s gonna change, it’s dynamic. It’s gonna be changing perhaps every week for those that aren’t vaccinated.

Rory Bellina (32:43):
Right. Because some people are on the Monday testing schedule, some people are on the Wednesday, you know that, that’s a lot. You know, a couple of hospital systems here in Louisiana that I’m familiar with on their name badges, they have a, a sticker. Now it’s, it’s different for hospitals and we’re gonna talk about that in our next episode cuz they’re requiring it. But, you know, are, are these employers gonna reach a point where they’re gonna have to mark, you know, kind of, you know, you know, Chris, here’s your sticker that you’re vaccinated. So I know that you don’t have to wear a mask, but you know, John is unvaccinated and he’s supposed to be tested on Friday, so he’s got a red sticker and that means with a star. So that means that red means unvaccinated and star means he should be wearing a mask. I mean, are these things that companies are gonna have

Chris Martin (33:30):
To do? Yeah, I think tho that’s, I think those are good questions and we don’t really know the answers to because you still have hipaa.

Rory Bellina (33:35):
That’s what I, that’s what I was thinking. You know, I put back on my, I i I take off my HR hat, which I really don’t have, but I take that off and go back to healthcare side. Now how are you gonna, you have to delineate this and now everyone’s gonna know what red stickers mean on vaccinated and, and gold in a star means he has to be wearing a mask. I mean, you’re telling everyone in the workforce then that John isn’t vaccinated.

Chris Martin (34:00):
And, and this, this mandate, one of the controversial things about this mandate is, is sort of that intrusion into privacy because it, this mandate is saying to employees and employers to the employer, I have a right to know what your vaccination status is. Not only to the employer has a right to know the, the, there’s a requirement that the employer know

Rory Bellina (34:24):
And I’m unfamiliar of that ever happening. Right. As a condition of employment or, or at least as a contin condition of really not a condition of employment just of a, of a, of a government regulation. I’m unaware of anything where you were required to, to ask these things. Yeah.

Chris Martin (34:42):
And the, I hate to end on a negative note, but we didn’t talk about the, you talked about the stick in the carrot. There are some serious consequences for not following these, this mandate by osha. And, and so I mentioned, so how it’s up to like $13,000 Yep. Per violation

Rory Bellina (35:05):
And additional citations or penalties for will for or egregious failures to comply per violation though. So per

Chris Martin (35:12):
Violation, per that per employee.

Rory Bellina (35:15):
Right. So even if they’re not wearing a mask, they’re not getting tested regularly, that that could rack up very fast.

Chris Martin (35:22):
And so, you know, the employer might be sitting out there going, Well, how the heck is ash OSHA ever gonna find out? Well, you have very rigid reporting requirements if one of your employees tests positive for covid. You have to report that if there’s a fatality due to covid in the workplace, you have to report that to osha.

Rory Bellina (35:43):
So they’re gonna come in and like we mentioned, they’re gonna request to see your policies and procedures, which are due December 5th. And then they’re gonna want to see this, this chart, per se, of who’s vaccinated, who’s not, when are they gonna be tested? And and my presumption is that if you don’t have that, they’re gonna assume that you violated it per each

Chris Martin (36:02):
Time. They could. They could. Another way that, you know, many times in, in typical workforce situation, OSHA is called by an existing employee to complain about a workplace safety issue. So you could have employees who feel very strongly about getting vaccinated or

Rory Bellina (36:23):
Wearing a mask or

Chris Martin (36:24):
Testing or wearing or mask and they see perhaps violations on behalf of employees or the employer. They can pick up the phone and call OSHA and actually report

Rory Bellina (36:34):
’em. And that would be very easy for them to stay anonymous. Yes. And, and that, so that’s another, it’s very important for, for private employers to, to follow this. Now you mentioned at the beginning of our episode that this has been challenged and it’s been stayed here. Can you give us a little bit, and we don’t have to jump a ton into it, but just kind of a little bit of, and I’ve been following it here in Louisiana and kind of across the country, it’s being challenged, you know, I believe we’re up to 26 states. Can you kind of give us a little bit of, of what’s going on, where you think it’s gonna go, if it’s gonna make it to the Supreme Court? Kind of a background on the, the challenges going on with this or what, what are the challenges?

Chris Martin (37:10):
Yeah, so there’s a number of, of, of courts of appeals. Fifth Circuit, as you mentioned, has stayed this enforcement. there’s a hearing on the permanent injunction coming up pretty soon in the fifth Circuit. I think what’s gonna happen, Rory, is you’re gonna have a split in the circuits. The, maybe the more liberal circuit is gonna rule that this mandate is enforceable and it’s valid and it’s constitutional. I maybe the fifth circuit, which is a more conservative circuit, may upheld, may, may say, may continue to in stay the enforcement. So you’re gonna have this conflict in the circuits. Well that’s exactly the kind of dispute that the US Supreme Court would probably hear and they’d have to hear it quickly.

Rory Bellina (38:01):
And while this is, and that’s what I was gonna say is, is while this is going on, there’s currently a stay. So what do we do here in Louisiana or for our Louisiana clients or anyone in the Fifth Circuit? Do we tell them, or you know, is it best practice to get prepared for this in case the stay is, is, is thrown out or you know, what, what do we tell those? Because it’s very confusing. You’ve got, you know, political reasons set aside. There’s a lot of battles going

Chris Martin (38:25):
On. There are a lot of battles we’re saying, we’re telling the clients don’t be lulled into a sense of false security thinking this is never going to be enforced because it could change in a day.

Rory Bellina (38:41):

Chris Martin (38:42):
so what we’re telling clients is take this time to prepare,

Rory Bellina (38:48):
Use the stake to your, to your, to your benefit per se. But still be cognizant of these deadlines.

Chris Martin (38:54):
You have a lot to do. Cuz if the stay is lifted, OSHA’s not gonna have a lot of patience with companies that say, Oh, well I wasn’t ready when, when it, when, when it was in force on November the fifth. So it may not come to fruition, but I think the safer course is to prepare as if it does and, and wait to see what the court system does

Rory Bellina (39:18):
To be prepared. And, and, and like you mentioned earlier, you know, I think we are, you know, we’re well versed in this. We’re we’re ready to help out. If anyone has any questions, the big thing that you want to tell people kind of to wrap this up is if, if they have questions, comments, concerns, need help, the big thing right now is you need to get these policies

Chris Martin (39:38):
In place. That’s, and we, we we’re helping clients literally today Sure. With their policies and procedures and to set up to meet these deadlines.

Rory Bellina (39:46):
Well, I think this has been super informative. I’ve had a lot of questions answered that, that I was, that was, I was unaware of. And the next one we’re gonna do is we’re gonna talk about the, the healthcare one, which is, it’s probably even more complicated, but we’re gonna talk about that in, in our next podcast. And then following that, the federal contractor. So Chris, thank you so much for, for all this and for joining us. it’s been great. And we’ll, we’ll see you on the next episode for Healthcare Workers. Look

Chris Martin (40:13):
Forward to it, Rory.

Rory Bellina (40:13):
Thank you everyone for listening. And if you have any questions, comments, or concerns, all of our contact information is provided in the links below. Thank you for listening to Health Law Talk presented by Chehardy Sherman Williams. For more information or to contact us, please visit our website, LinkedIn, the description below. Also, please be sure to subscribe to our podcast and follow us on Facebook, Twitter, LinkedIn, in YouTube – links in the description below. Thank you for listening.

OSHA’s “Private Employer” Mandate for 100 or more employees has some serious legal, personal, and medical implications. In this episode, we dive into the mandate, what it means, who it applies to, and what employers need to do to get ready.

Health Law Talk, presented by Chehardy Sherman Williams, one of the largest full service law firms in the Greater New Orleans area, is a regular podcast focusing on the expansive area of healthcare law. Attorneys Rory Bellina, Conrad Meyer and George Mueller will address various legal issues and current events surrounding healthcare topics. The attorneys are here to answer your legal questions, create a discussion on various healthcare topics, as well as bring in subject matter experts and guests to join the conversation.

We handle everything from regulatory and compliance check-ups to employment matters, Medicare and Medicaid issues to state and federal fraud and abuse regulations. Our healthcare attorneys are always staying up to date on the latest state and federal regulations to ensure that our knowledge is always accurate.

Our team has the expertise to assist you with compliance matters, HIPAA violations, payor contracts and employee negotiations, practice and entity formation, and insurance reimbursement issues, in addition to the full spectrum of other healthcare related issues.

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