Thoughts on OSHA's COVID-19 Vaccination, Testing and Face Covering ETS
By Mike Harper | 01/05/2022
The views and information shared in this blog are our best interpretation of empirical, non-politicized, data. Our Co-Founder, Susen Trail, holder of a Master's Degree in Molecular Biology from the University of Michigan, has been studying and researching COVID-19, and the response to COVID-19, from its inception (Feb. 2020). As a former OSHA standards enforcement officer, she is also holds some unique insights on OSHA's position.
We felt it valuable to provide context to our current and potential clients to help you understand our position on the virus and OSHA's response. We also understand, and appreciate, that there are multiple [traditionally] authoritative sources, varying opinions, and considerable unknowns in this environment. Given all of this, everyone is allowed their thoughts, and we don’t begrudge those that hold different opinions.
We are in the business of helping you successfully provide a safe and compliant workplace. This means providing tools and information to help you keep your employees safe, as well as ensuring you have the necessary means of tracking and proving OSHA compliance. Normally, these are nicely aligned with one another. OSHA's standards provide a great baseline for safety guidance, with additional safety steps added by employers, where necessary. There hasn't been a lot of controversy over the methodical and meaningful measures OSHA requires, and their positive impact on safety.
This ETS, however, places us (and indeed everyone) in a different, and somewhat difficult position. We will continue to be knowledgeable about, and provide guidance on, successfully navigating the standard to ensure regulatory compliance with whatever OSHA's ruling is. However, unlike prior standards, we don’t believe the proposed ETS is a meaningful step toward ACTUAL, science-based, workplace safety.
How these discrepancies may play out in the court challenges in the coming days is anyone's guess. Our recommendation to employers affected by this standard is to assume that the standard will pass the Supreme Court challenge and will be found to be enforceable. For those businesses that fall below the 100 employee threshold, we advise you to start planning your path to compliance, as the administration has already indicated its desire to apply this standard to workplaces below the current 100 employee waterline.
So, where are the “gotchas” in this standard that give us heartburn?
This is the section where we draw attention to what the standard requires, versus what would constitute a truly science-based, safe workplace.
- Vaccinated employees are not required to provide proof of either antibodies or of a negative COVID test. With breakthrough cases in abundance, putting all the emphasis on unvaccinated employees provides a false sense of security.
- Unvaccinated employees, including those considered exempt (religious or health reasons), are required to provide proof of testing are required to provide a negative test every 7 days. The incubation for COVID starts at 2.5 days. Again, this can lead to a false sense of security.
- Allowable face coverings that are required of unvaccinated employees have been found to be ineffective against COVID (or any other viral particles). You can reference OSHA's stance, prior to COVID, on surgical masks, at this link.
- Employees requiring face coverings are allowed a "time out" while eating. This is very likely in an environment with less ventilation and closer proximity to co-workers. Note that infectious viral particles have been found up to 23' from the source when normally exhaled.
- Ignored in the PPE requirements are the eyes, which are mucus membranes that have ACE2 receptors, to which the COVID viral particles bind.
- Unlike the 2009 guidance for pandemic influenza, and the ETS 1910.502 for medical professionals, this ETS has no engineering controls.
- Alongside the ETS, OSHA stealthily created the 1910.504 Mini Respirator Protection standard. However, it does not require employers to verify the employee is able to wear the respirator safely.
Other things you should know about this standard:
- Based upon the Severability section of the standard, any part of the ETS that is not expressly struck down in court will continue. This includes the 1910.504 Mini Respiratory Protection Program, 1910.505 Severability, and 1910.509 Incorporation, which are all referenced in the ETS. The court case is not necessarily binary (stands or struck down in full). It could very well turn out that some pieces are struck down, and some will remain in place.
- If you, as the employer, accept a fraudulent document (vaccination status or test result), and cannot prove that you didn't know it was fraudulent, it is a violation of a FEDERAL regulation that can include fines and jail time.
We wholeheartedly support OSHA's mission in advancing and ensuring workplace safety. This ETS, however, is a significant departure from every other OSHA standard. Everything from how it is written, to its justification, to the imperfect application of which scientific research results are observed vs. ignored.....is simply not aligned with how OSHA has historically operated.
We aren't suggesting that you not prepare and follow the ETS if/when it's upheld by the court. You absolutely need to! However, know that compliance with this standard requires an adherence to a seemingly arbitrary set of requirements, not necessarily what follows common sense or science, so you are best served to approach and think about it differently as well.
Also know, we are following this closely, and have plans in place to add the tracking and reporting capabilities to Simple Safety Coach should the courts rule that the standard is enforceable. If you would like more information regarding what this capability will be, please reach out to us.