Remember the Seinfeld episode where George repeatedly tries to break up with his girlfriend Maura and she is not having it? The poor guy even starts an affair with his freakishly-tanned officemate Loretta and then arranges to get busted, but Maura won’t budge. Over and over as George tries to pull the plug on his broken, bleeding relationship, hilarity ensues.
George: “Maura, I want you to know I’ve given this a lot of thought… I’m sorry, but we have to break up.” Maura: “No.” George: “What’s that?” Maura: “We’re not breaking up.” George: “We’re not? Maura: “No.” George: [Big sigh; shrug] “Alright.”
It’s funny because that’s not how it works. Maura is supposed to either get really sad or really mad and then beg George to stay or tell him to fuck off. Those are pretty much the only options. Flat-out refusal isn’t a choice; that’s why it’s funny.
Last month, LGB (Let’s Go Brandon!) unveiled a sweeping 6-prong approach to COVID, where he announced that companies with 100 or more employees must require their workers to be vaccinated or undergo weekly testing.
It turns out, more than a month later, that announcement is nothing more than that… an announcement. A press release. It’s George saying, “I’m breaking up with you,” and Maura saying “no,” and everybody proceeding as if that makes unequivocal sense and inviting the pair to their dinner parties.
How it really works is the Occupational Safety and Health Administration (OSHA) is tasked with issuing an Emergency Temporary Standard, or ETS (so many emergencies!) and then submitting it to the Office of the Federal Register. That last part is what allows OSHA to implement the requirement. Part of the submission requirements are that OSHA must demonstrate that the workers who would be affected are facing grave danger at work from exposure to toxic or harmful hazards and that therefore, the ETS is necessary to mitigate that danger.
Who’s going to determine “grave danger”? Who’s going to enforce and track compliance with the ETS? Does OSHA, which was created to regulate safety in the workplace, even have the power to impose such a requirement? Are independent contractors considered employees? Who’s going to pay for testing—the companies? The government? The employees? Will religious and medical exemptions be honored? Will the mandate apply to remote-only employees? Who will monitor vaccine status (in particular, as it pertains to waning efficacy)? Will boosters be required? These are but a few of the prickly little wrinkles that still need to be ironed out.
OSHA has drafted a riveting 44-page document detailing the proposed ETS. I took the liberty of reading it in its entirety and have pulled out a few key points for the class, which I’ll paste below. In the meantime, it’s important to note that as of this point in time, the mandate is technically not even in effect. That hasn’t stopped employers from implementing its proposed sweeping measures, of course, which is pretty handy for LGB, right? Because if the federal government was forcing an experimental medical procedure on Americans and something went wrong, they’d be liable for those injuries, I’d imagine. (You know, since it’s not the drug makers’ fault.) Just something to think about.
According to LeadingAge.org, nine states have passed laws banning employers from mandating vaccines for workers and three are in the process of enacting such bans. In addition, twenty-four states have threatened to sue the current administration over the mandates, calling them ‘disastrous, counterproductive and a threat to individual liberty.’
LGB’s response to reporters about the threat of legal action? “Have at it.” (*The fact that the man managed to mutter three consecutive, coherent syllables should at least be acknowledged.)
Shit’s about to get real.
In the meantime, please enjoy some noteworthy points from the OSHA proposed ETS:
Note to paragraphs (a)(2)(iv) and (a)(2)(v): Under various anti-discrimination laws, workers who cannot be vaccinated because of medical conditions, such as allergies to vaccine ingredients, or certain religious beliefs may ask for a reasonable accommodation from their employer.
(b) Definitions. COVID-19 (Coronavirus Disease 2019) means the respiratory disease caused by SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2). For clarity and ease of reference, this section refers to “COVID-19” when describing exposures or potential exposures to SARS-CoV-2.
“Workplace” means a physical location (e.g., fixed, mobile) where the employer’s work or operations are performed.
(3) The employer must designate one or more workplace COVID-19 safety coordinators to implement and monitor the COVID-19 plan developed under this section. The COVID-19 safety coordinator(s) must be knowledgeable in infection control principles and practices as they apply to the workplace and employee job operations.
(4) (i) The employer must conduct a workplace-specific hazard assessment to identify potential workplace hazards related to COVID-19.
(5) The employer must seek the input and involvement of non-managerial employees and their representatives, if any, in the hazard assessment and the development and implementation of the COVID-19 plan.
(iii) The following are exceptions to the requirements for facemasks in paragraph (f)(1)(ii) of this section: (E) When employees cannot wear facemasks due to a medical necessity, medical condition, or disability as defined in the Americans with Disabilities Act (42 USC 12101 et seq.), or due to a religious belief.
(m) Vaccination. The employer must support COVID-19 vaccination for each employee by providing reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination.
(n) Training. (1) The employer must ensure that each employee receives training, in a language and at a literacy level the employee understands, and so that the employee comprehends at least the following: (ix) available sick leave policies, any COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, and other supportive policies and practices (e.g., telework, flexible hours).
(p) Requirements implemented at no cost to employees. The implementation of all requirements of this section, with the exception of any employee self-monitoring conducted under paragraph (l)(1)(i) of this section, must be at no cost to employees.
(1) Effective date. This section is effective as of [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER].
Disclaimer: This final rule has been submitted to the Office of the Federal Register (OFR) for publication and is currently pending placement on public inspection at the OFR and publication in the Federal Register. This version of the final rule may vary slightly from the published document if minor technical or formatting changes are made during the OFR review process. Only the version published in the Federal Register is the official final rule.