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 – links in the description below. We hope you enjoy this episode.

Conrad Meyer (00:36):
All right. Good afternoon, everyone, or good morning. Afternoon. Yeah, Rory Bellina in the studio today, Conrad Meyer, another audition of Health Law Talk.

Rory Bellina (00:44):
Afternoon everyone, or good morning, depending on where you’re

Conrad Meyer (00:46):
Listening. Right. And this is , this is sort of a special edition, I guess, very timely. Another timely podcast on a, on a previous podcast we did on vaccine mandates.

Rory Bellina (00:57):
Yes. So today’s topic is going to be OSHA’s Emergency Temporary Standard. It was announced last week by President Biden, and it’s going through a little bit of an administrative period, but we expect to roll out shortly. And we know this is a, we’ve already getting calls on it from some of our clients. So we thought it would be a good topic for today’s episode.

Conrad Meyer (01:15):
Absolutely. So, well, first off the bat, what is an emergency temporary standard? What is that?

Rory Bellina (01:22):
Sure. So if, if, if you’re not familiar with what an emergency temporary standard or ETS is we had one come out, I believe it was earlier or later in the year last year.

Conrad Meyer (01:32):
It was June. It was

Rory Bellina (01:33):
June. It was June, Okay.

Conrad Meyer (01:34):
Of this year, actually. Yeah,

Rory Bellina (01:35):
You’re right. The years are blurring together, but it

Conrad Meyer (01:38):
Wass what happens when you get locked down, Right?

Rory Bellina (01:40):
That one was for healthcare workers, and basically it’s the, the government takes authority under OSHA to put into these emergency standards. And there’s kind of this two-prong criteria that they rely on. One being that there’s a grave danger and that there’s an emergency standard necessary to protect. So we’re gonna dive into a little bit of what that looks like and, and how this power has come to be and how it was used for healthcare workers, and how it now it’s gonna be used for employers of a hundred or more. So we’re gonna talk about those different criteria as

Conrad Meyer (02:13):
Well. Now, for those of you who are the, the legal eagles or who like to research and dive right into it, you can find a lot of this stuff online. the the citation for the ETS that was adopted in June 29, Code of Federal Regulations Part 1910 Subpart U and you could check out 29 usc United States Code 6 55 c1 to see the emergency standard of emergency temporary standard that Ocean must meet. So for those of you who like to research that’s there so sure. Very, I mean, we see on the news every day very unpopular with some folks. Very popular with others. Rory, what, what, what hurdles do you see coming up? well, what, how about this, what challenges do you see for OSHA with respect to mandating this and, and, and maybe relate it back to the healthcare one that was done in June?

Rory Bellina (03:08):
I, I see a few, and, and we see more and more employers are, are getting together, or unions are getting together there to, to challenge this. So, you know, I, I think it’d be beneficial to our listeners to give a little bit of background of, you know, what OSHA is, what this ETS is, and then, and kind of walk through that’s a good idea how this is going. So, yeah, you know, over the, the, the 10,000 foot view is that, you know, OSHA is this administration that was put together by the government and San Occupational Safety and Health. So they’re the agency that essentially regulates a lot of work type requirements, rules, regulations. So for take a construction site, for example, OSHA says that you have to wear a hard hat or a certain color neon vest. If you are if you work hospital, for example, if you mop the floors, you have to put out the little slippery when wet cones.

(04:00):
And, and the, the, the goal behind it is to have this standardized set of rules to where there’s workplace safety, and so your employees are safe and people that are on the premise are safe. So mm-hmm. , that’s kind of what OSHA is very, that’s very loose description of what it is, but that’s what it is overall. So, Connor, in a new, I know that, that you and I have looked into this, but OSHA took their power and mandated these, or allowed the vaccinations to be required for healthcare workers earlier in the year. And so,

Conrad Meyer (04:33):
And that was back in June of, of this summer because, and they used the grave danger language to give them the authority to do that to healthcare workers because of the covid numbers, and especially with the rise of the Delta

Rory Bellina (04:45):
Area. And you mentioned the grave of danger. So, you know, like we said, OSHA has these rules and regulations that I gave. The example of the hard hats, the knee un vests, the, the slippery and wet signs. But that typically takes,

Conrad Meyer (04:55):
That’s just for regulatory stuff. That’s just regular, everyday operations. It

Rory Bellina (04:59):
Does. And, and to get those rules into place, a lot of it, it takes a lot of time, takes public comment. It’s a slow process.

Conrad Meyer (05:05):
So, wait, real quick, let’s, let me, let me stop, pause, hit the pause button. Let’s, for our listeners, tell them what normally in, in, in any kind of rule making situation for the federal government from an agency of the federal government, how does that, from the, again, 10,000 foot view, right? How does that look, What does that look like for the layperson? So the, the people can understand how rule making occurs from an agency standpoint?

Rory Bellina (05:26):
Sure. So it typically will start with an, an agency or, you know, a group of members within the agency, or they’ll get suggestions. So I’ll go back to the hard hat example of that. We keep going. Someone says, or someone within the agency says, Look, if you’re on a construction site of this size or of, of this specification, everyone should be required to wear a hard hat. So they have that general policy in place. So OSHA will look at it and they’ll look at it and say, Okay, we think this is good. Let’s take some, let’s see, see, you know, what kind of hardhats are we gonna mandate? Do they have to be a certain strength, a certain quality? And then let’s go to the public. Let’s open this up for public comments. So that’s when you’ll get people from different industries, whether they’re

Conrad Meyer (06:08):
The, So there’ll be a preliminary rule. Correct. And then it’ll be published on the website or in the internet.

Rory Bellina (06:12):
And there’s a period of time where they allow for public comment. And the public comment period allows people that are actually on the ground saying, This rule is ridiculous, that it’s gonna slow down productivity. Or, these hard hats are too expensive, or the manufacturer can’t get us to them. So it gives time for the government agency to work out the, the wrinkles. And they’ll take all those comments and they’ll respond to them typically. And they’ll say, Okay, well, here’s our interim rule. And they’ll put into place another rule, and they’ll, they’ll be a period of that time. And then ultimately it goes up the, the, the chain of command and gets approved and put into a regulation. And so,

Conrad Meyer (06:47):
Or a final rule.

Rory Bellina (06:48):
A final rule. Correct. Right. And so that’s kind of the, the outline of, of how these rules come into place. Now,

Conrad Meyer (06:55):
In a normal situation, normal

Rory Bellina (06:57):
Situation,

Conrad Meyer (06:57):
What’s the process from, let’s say, preliminary rule all the way through comment, period, in a interim and final? What, what would you say that

Rory Bellina (07:04):
It’s, from what I’ve seen, I mean, you’re lucky to get it done in a year. from, from these rules that I’ve seen it, it’s, it’s a, it’s a slow process because it goes from we’re going back to the, the hard hat example. It goes from one agency to another. Then they, then they’ll, they’ll talk about the, you know, the engineering side or the design side. It, it bounces around between agencies. Then they’ll do public comment for typically at least 60 days. They might make some revisions. It has to be published. It has to be noticed. It’s, it’s a very slow process.

Conrad Meyer (07:34):
And, and then, and when the final rule is published, how often does it take, or, or how often does the agency, and I guess it varies by agency Sure. But do they normally give entities like to, to

Rory Bellina (07:46):
Apply a grace period? Yeah. So typically there’s a grace period. And depending on when the final rule comes out, a lot of times it’s, it’s six months, or it could be the beginning of the next calendar year where they say, Okay, here’s the new rule. If you’re on a work site, you need this hard hat, but we’re not gonna make it effective until January one of next year.

Conrad Meyer (08:02):
So it’s a, it is sort of a lengthy process. It

Rory Bellina (08:04):
Is, it is. It’s very lengthy. It’s very bureaucratic. It, it takes time to go through to get these, these put in place.

Conrad Meyer (08:10):
Guess how long, guess how long OSHA gave to implement even on a, on a, on a, on a, on a comment period? The emergency temporary standard for the healthcare workers back in June?

Rory Bellina (08:25):
I’m not sure. That’s a good

Conrad Meyer (08:26):
Question. That’s a good question. 15 days.

Rory Bellina (08:29):
That’s ridiculous.

Conrad Meyer (08:30):
And wait, wait, it was 15 days after publication. There was hardly any time for comment. Period. And then some, some, And that was, and that was not just for comment, that was for compliance.

Rory Bellina (08:42):
That’s, that’s very short. And, and just to go into a little explanation of why that shows short, is when these rules come out, they’re very complex and they’re very detail oriented, and a lot of them have very, you know, minute criteria in

Conrad Meyer (08:58):
That. I get that

Rory Bellina (08:59):
It takes time for your agency or your attorneys or your lobbyists to look at this and say, This isn’t gonna

Conrad Meyer (09:04):
Work. But if I’m a hospital,

Rory Bellina (09:05):
You’ve got no time to respond.

Conrad Meyer (09:07):
You have zero time to respond to this. Right. And then, and then not only that, you know, I know that some, some entities were allowed 30 days, others only 15 days. So now we have this next on the vaccine mandate for the hundred employees or more that’s coming out using the same criteria under the ets mm-hmm. on this quote, grave danger. And, and, and again, I mean, think about just those two words, grave danger. What does that mean? How are that, how is it defined? Do we have any Right. Any any case law that will discuss that. And, and you know what they’re gonna do? They’re gonna parade all the covid numbers, you know, all over the place from the delta variant, from the Vata started. And they’re gonna say, See, everybody, it’s, this is a grave danger.

Rory Bellina (09:47):
And there’s, there’s two criteria that, that you mentioned. It’s that employees are exposed to a grave danger from substances or agents determined to be toxic or physically harmful or from new hazards and big word. And that such emergency standard is necessary to protect employees from such danger. So I think you really have to break those apart and say, Okay, the first thing is covid 19 considered a grave danger. I think you’ll get people that can, rightfully so they’ll argue that on both sides, they could say, Yes, it’s causing hospitalizations, deaths, complications. It is a grave danger. I think you can also find people to say it’s a danger, but we have vaccinations. We have these social distancing protocol, we have masks in place, We have ways to fight this. Is it grave enough to take this sort of action? So, you know, and, and, and we’ll kind of walk through this, but essentially the government is saying, Yes, it’s a grave danger. So we go to step two. This is necessary to protect employees from such danger. And that those are the two criteria that are gonna be the basis for the challenge. I think the grave danger is going to be the, the, the one that’s challenged more that, that this might fall

Conrad Meyer (11:01):
On. Well, I think, I guess the next question is is, I mean, when you, when you looking at the data that’s gonna be thrown on the screen by OSHA and, and, and whoever’s, you know, defending OSHA on this, on this rule making, what is that data accurate where they get the data? I mean, I, I’ve, I’ve, I mean, since this whole thing started, I’ve heard so many different things about how we collected data. Sure. What’s Canada’s a Covid death? What’s how do we, you know, monitor and collect covid positive tests? Right. And it’s all changed from, from day one until the present. So, I mean, it’s constantly changing. It’s, it’s, it’s, to me, it’s, it’s it really accurate,

Rory Bellina (11:37):
Right? And, and you can get these DA data sets and make multiple conclusions from what you see in them. So this is definitely gonna get challenged. Is it an, an ets? So, you know, I think for the conversation of this podcast, you know, let’s, let’s just take it where it is. Right? Right now it’s coming out. It’s gonna be challenged, obviously.

Conrad Meyer (11:55):
Well, they haven’t issue the rules yet. There’s not even a preliminary rule yet.

Rory Bellina (11:59):
But I think it’s important to talk about, Let’s assume that this goes forward, right? And, and is finalized as is. So what would happen, So first of all, who does the supply to?

Conrad Meyer (12:09):
Well, and that’s a good question because I, you know, it applies to the a hundred employees or more, Correct.

Rory Bellina (12:14):
Public

Conrad Meyer (12:15):
Or private. Public or private. But also you have, there are, you were figured applies to every state in the land, but, but there are states already mm-hmm. that have state mandated rules. Correct. You know, so with these states, it’ll, to me it’s kinda gonna be like a HIPAA situation back, remember hipaa? Yes. You know, so if the state rule is, is similar or more stringent than the OSHA ets that applies, that applies. Correct. And then if not, then you’ll, then OSHA applies then, then OSHA ETS applies.

Rory Bellina (12:43):
Right. And I think important, an important thing to point out, especially with so many people working virtually working from different locations, is that this rule was very clear and it said that it’s not location based. So if you work for a branch of a bank or a branch of, or some, you know, entity like that, as long as your entity has 100 or more, this applies to you even if you have an off, if you’re in the little office in New Orleans that has five people, but New York has a thousand, this applies to you.

Conrad Meyer (13:10):
So let’s take fast food, for example. Sure. Franchisees, right? Yes. Or even in, you know, they, they might have different entities. Right? Right. Does that collectively get added because they’re all a, a, a certain fast food franchisee? I mean, does it collectively, I don’t

Rory Bellina (13:27):
Know. And I don’t think we know. I think that’s a, that’s a, that’s a, you know, a corporate criteria question. We don’t know. Cuz the franchise model is a great example. There’s a lot of franchises. And if you are, if you have five employees underemployed under your llc, but you’re ultimately on the, under the umbrella of a corporate franchise, does that apply to you? It, it’s, it’s unclear right now. Well,

Conrad Meyer (13:49):
I, I guess another thing too, Roy, that, that kind of, kind of gets me is, is, is well, okay, so what’s the message we’re sending here? I mean, basically what we just talked about before the show basically no matter what happens, it’s gonna be like, like everyone’s getting the vaccine. Correct. I mean, that’s the, but the boxing in every, somehow it’s gonna come to that.

Rory Bellina (14:10):
I think we’re seeing as days and weeks go on and on, it started with the goals to get the healthcare workers, the elderly and the teachers vaccinated.

Conrad Meyer (14:19):
Now, if you would’ve talked me, we did the show, what, six weeks ago when the vaccinated,

Rory Bellina (14:22):
I think so six,

Conrad Meyer (14:23):
Four to six weeks ago. Was it middle of August? Yep. You know, or beginning of August

Rory Bellina (14:27):
And we didn’t have, this wasn’t out and we were talking about, or could it be mandated for? Could, could it be mandated? And

Conrad Meyer (14:34):
Well, now we know the answer. Yeah.

Rory Bellina (14:36):
Yeah. And, and I think as time goes on, you’re gonna keep seeing as, as, I don’t wanna say vaccinations are at a standstill or anything like that, but as vaccinations aren’t getting to the numbers that the government wants them to be at, you’re gonna see the government finding these creative ways to mandate more and more Americans to get vaccinated. And this is probably gonna be the, the biggest swoop if you’re trying to get, you know, a huge chunk kind of in one rule, I think this is the one that’s probably gonna accomplish it the most

Conrad Meyer (15:08):
With the exception of the postal service. Right. Right, right. And and guess what did you realize? And the Congress

Rory Bellina (15:13):
And

Conrad Meyer (15:14):
Congress Yeah. And the judicial branch as well.

Rory Bellina (15:16):
Yep. There are some, there are some car values to this already, which

Conrad Meyer (15:19):
I wonder how that played out

Rory Bellina (15:21):
That Yeah, that could be, that could be another topic for another

Conrad Meyer (15:24):
That could be topic for another show.

Rory Bellina (15:25):
It, but it, it’s got some, it’s got some serious implications and they break down, you know, violations. If you violate it and you’re, it could, and it’s not really defined, but a serious violation could be $13,000 per violation, or a willful violation is 136,000. So you’re talking real dollars that could cripple a, a medium to large size business with a hundred

Conrad Meyer (15:48):
Or more employees. That’s per violation. Per violation. So what’s, I mean, I guess the question is, is what’s considered willful? Right?

Rory Bellina (15:55):
Right. And if you have a company and you say, I’m not gonna follow this OSHA etr, what ets what happens? Does that mean that every person that doesn’t follow it, that’s a willful violation of $136,000?

Conrad Meyer (16:08):
I mean, do you think the government, I mean, we haven’t seen the rule making yet, but I mean, is it in per individual? So if I’ve got 500 employees and we’re saying we’re not doing it, is that 500 willful violations?

Rory Bellina (16:18):
And, and, and I think that that’s a question that would come out in the comments, but OSHA has already said that they’re not gonna provide an opportunity to comment on this, which is, I don’t know if that’s ever happened before. It seems very strange.

Conrad Meyer (16:28):
I have never in, in the rule making thing, and you and I have been doing, I’ve been doing this 20 plus years in healthcare. Sure. I’ve never seen a rule making like this where the trigger was so fast Sure. And the there was no comment period. Sure.

Rory Bellina (16:42):
And, and I think it, it, you know, it comes down, it, it, it continues to develop. So if you’re the employer, now you have to follow this rule. or you have to have weekly testing. Let’s talk about, you know, one thing in there is that the, the requirement says you have to provide reasonable paid time off for the vaccination and for side effects. So imagine you’re a huge corporation and you need these employees available. Now they have to get vaccinated or tested weekly, but if they get vaccinated, they’re, they get paid time off to get that vaccine. And for those side effects, I mean, you’re gonna have to really be creative in how you schedule your employees to get vaccinated. So you have staff to continue to operate.

Conrad Meyer (17:25):
Well again, and, and, and I think it’s, it’s, and, and I think the president came out and said that it’s, it’s applies to a hundred employees or more, but it was either get vaccinated or have that weekly test. Right. And

Rory Bellina (17:36):
We don’t know who’s gonna cover the cost of

Conrad Meyer (17:38):
The test. Well, we got the, who’s gonna cover the cost of the test. Mm-hmm. , what evidence do you have to show that you had the test? Correct. What evidence do you need to show that you were been vaccinated? I mean, do I mean, aside from your vaccine card, You know, what else? You know, I mean, what else do you show? Right? and then, you know, so there’s a lot of things in limbo that we just don’t know because we haven’t seen the rule. Yeah.

Rory Bellina (17:58):
I think that this, this has, this ETS has brought out many more questions than we have answers to right now. And I know that I’ve already started to get questions on it, and a lot of it is we don’t know until the final rule comes out. We don’t know what it’s gonna be.

Conrad Meyer (18:12):
So if you have an, if you have a a a, if you’re an employer that has more than a hundred, a hundred or more employees, I mean, these questions have got to be burning in your head. I mean, if, if you’re not gonna, if you’re not the gonna force this on your employees mm-hmm. , then who’s gonna pay for the testing? How are you gonna schedule that in, you know, just to comply with the ets. Right. Right. I think a lot of questions still outstanding on, on what I’ve seen is, Right, you know, warp speed, right? On this ets

Rory Bellina (18:39):
And there they, there is allowance for medical and religious exemptions. but then that’s gonna require that weekly testing. So you could have a significant amount of your employees that need to go get tested weekly that they’re, they’re losing time in the office the costs associated with the testing, which we still don’t know who’s going to bear that cost. So, like you said, there’s a lot of unknowns with this. it’s gonna be interesting to see how employers and big unions, you know, want to handle this.

Conrad Meyer (19:06):
Well, I think, I think from what I’m reading, they’re gonna wrap the healthcare ETS that was done in June into this. Right. And so, you know, recommendations that I think employers need to figure out, number one, are they gonna comply with this or not? That’s the very first thing. Sure. how do you deal with people who work remotely? So in other words, if you’ve got a Salesforce that’s out all over the country, all over the globe, how are you gonnas supply? How are you gonna confirm a covid test Right. From someone who’s not, you know,

Rory Bellina (19:32):
Local Or what if you’re a large company, but a huge portion of your force work from home? Are they gonna be required to get a vaccine when they’re, they never step footed in an office?

Conrad Meyer (19:42):
So then what about how, how to identify unvaccinated and vaccinated employees? How you gonna do that? You gonna line them up and say, show me your card?

Rory Bellina (19:48):
Or now you’re gonna have to start asking for medical and religious exemptions. So you’re have to ask them, show me, show me a doctor’s note that says why you can’t get us, or tell me your religious reasoning. And I mean, that’s very personal information.

Conrad Meyer (20:02):
Mm-hmm. , what about, I mean a compliance officer, I mean, someone, you’re gonna have to have someone in compliance regulate, you know, some sort of policy and procedure for just getting the testing results, right? So that you’re complying with the

Rory Bellina (20:14):
ETS and constantly tracking it and everyone’s week is gonna fall on different times. It’s not like you can just do all these on a Monday. It’s gonna be, it has to be a week from the prior test. So it, it administratively, I mean, if you have a, if you have a large company and your employees are not all vaccinated, it’s gonna be an administrative hurdle for you to, you’re gonna have to have someone that’s very dedicated to this, to dealing with this testing.

Conrad Meyer (20:38):
And then again, other things too. I mean, if you’re gonna be, are you gonna pay for the vaccines? You’re gonna have onsite vaccination clinics, you’re gonna have onsite testing. Right? how do you set that up?

Rory Bellina (20:48):
One thing that, that, that ETS does not address is what is considered vaccinated? Is it one shot? Is it two shots? Is it two shots plus three weeks when the shots are most effective? That’s unclear as of right now, too.

Conrad Meyer (21:00):
So nobody knows that. That’s

Rory Bellina (21:01):
True. That’s another, that’s another thing that’s, that’s vague in this.

Conrad Meyer (21:05):
So what do you do with employees who don’t wanna do this? I mean, what’s, what’s the option? I mean, I, we saw the Texas case, right? Right. Where, I mean, that was, that was national news, but I’m sure it’s happening all over the place where, where people are just getting fired. Is that, is that the answer?

Rory Bellina (21:19):
I think think that the employer’s gonna have to make the decision. Are they going to, you know, the employer could be more strict. The employer could say, you know, we’re taking this OSHA guidance, but we’re gonna make it stricter. We’re just gonna say vaccine or, or bust, you know, vaccine or you’re out. And that could be that because they, I could see employers looking at this and saying, I don’t want to deal with the testing portion and I don’t wanna have to pay someone to just be a manager of COVID test. I’m just gonna make it, You’re either vaccine or you’re not an employee of this company anymore.

Conrad Meyer (21:51):
So messages to employers mean from my standpoint, you know, just from listening to this and watching this from, you know, from a very, very important Sure. Eyes wide open gaze here. Sure. I think employers need to absolutely monitor the OSHA guidance. Yeah. to keep up to, up to speed as to what they’re gonna do. And then, and then also look at the CDC guide and see, see if they correlate, you know, with this correlation to that. And and keep on top of that. And also you now, because this has come from the White House, you’re gonna have to monitor the executive order. Right. And what, what is coming from the White House to determine what are you gonna need to do to comply? So, cuz that’s gonna feed into OSHA and then the cdc, all of them combined now. Yep. I mean, you have a lot more eyes on to see if you’re gonna comply with these new ETS standards.

Rory Bellina (22:39):
And it’s gonna be a, it’s gonna be a conversation that you have to have with your upper, upper level management and you know, owners to decide how do you want to handle this? What policies do you want to put in place? it’s ever changing. I think we’re gonna have to do an update on this in a few weeks when we, when we get this final rule, we could really dissect

Conrad Meyer (22:57):
It. Absolutely. And, and look, I want to thank everybody for listening today. This has been a special edition of health law talks with respect to the ETS that’s gonna be coming out from OSHA real soon. we want to thank everyone for listening. please go ahead and, and make sure to subscribe to our podcast channel. you can do that anywhere on Apple Podcast, I think on Spotify. And and tell us if you have any comments or if you have any questions or if you really wanna just ask us to do certain topics, why don’t you go ahead and give us an email. I’m gonna leave you my email. It says cm@shahardi.com. Rory

Rory Bellina (23:29):
R bellina at chehardy.com.

Conrad Meyer (23:31):
Send us an email if you like us. Tell us what you think. Tell us the good, the bad, the ugly. And if there’s some topic you want us to hear or talk about, please put it in in the email. We look forward to hearing from you. Thank

Rory Bellina (23:40):
You. 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 in 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.