President Biden on Sept. 9 announced his intention to have OSHA implement an emergency standard requiring vaccines and testing at businesses with more than 100 employees. This mandate poses enormous logistical challenges for employers and employees, and may not be constitutional.
AFS has already taken the actions listed below and will not rest until this matter is satisfactorily addressed.
1. OSHA Outreach Call. On Sept. 10, the day after the President’s surprise announcement, AFS participated in an OSHA/DOL outreach call. The DOL Solicitor said the emergency standard was weeks away. OSHA warned there would be no further outreach sessions and no solicitation of public comments until after the standard was released to the Federal Register. OSHA did not indicate whether they will consider letters from employer groups, and DOL representatives didn’t comment when asked.
2. Membership Alert. AFS provided an alert to the membership the same day – Sept. 10. At least one AFS member told us he would consider going from just over 100 employees to just under 100 workers in order to avoid these sweeping mandates.
3. List of Foundry Industry Concerns. AFS sent a series of initial foundry industry concerns to OSHA on Sept. 13. The same list was shared with the National Association of Manufacturers for coalition lobbying purposes.
4. Oral Briefings to Member Groups. On Sept. 14, AFS Washington lobbyist Stephanie Salmon briefed the Foundry Leadership Summit audience in Scottsdale about the plan and AFS’s work. On Sept. 23, she updated the AFS Safety & Health Committee, chaired by Brent Charlton (Metal Technologies), on the latest developments.
5. Coalition Letter on Policy of Not Accepting Input. AFS and the Coalition on Workplace Safety wrote on Sept. 24 to the Acting Assistant Secretary of OSHA, urging the agency to reconsider its decision not to accept input from interested stakeholders.
6. Speaker at EHS Conference. Attorney Bill Wahoff of Steptoe & Johnson will provide an overview of what we know to the annual AFS Environmental, Health & Safety Conference on Oct. 7 in Birmingham, Alabama. He will address the requirements for federal contractors, new enforcement initiatives, possible litigation challenges, and response/backlash from states.
7. AFS Members-Only Webinar. AFS will schedule a webinar for members promptly once the emergency standard is released. The webinar will answer compliance questions and brief registrants on AFS actions.
8. More Detailed AFS Letter to OSHA. Although OSHA has not acknowledged whether it will accept letters from employer groups, AFS this week will be sending a more detailed letter to OSHA highlighting concerns that include:
- Huge concern about backlash from foundry workers who likely will leave employment if they must be tested weekly. This would exacerbate the worker shortage that already exists at facilities across the nation.
- How will the Administration ensure the availability of adequate testing capacity to satisfy the significant increase in demand the ETS will create?
- Who will incur the costs of testing and how to implement such testing without disruptions to metalcasting operations?
- Will employers have the option to pass along the costs of tests to employees who refuse the vaccine to further incentivize vaccination?
- What actions must an employer take if an unvaccinated employee cannot access a test in a week? Is that employee eligible to work?
- Does the employer incur a fine for not getting the employee tested if there is a lack of adequate testing or are the fines suspended?
- How will employers track, verify and record whether an employee has satisfied the requirement, including verifying vaccination status and test results and addressing the potential for fraud?
- With respect to records, what records will employers need to keep, and will these requirements be consistent with other laws governing employee records, such as the Health Insurance Portability and Accountability Act (HIPAA)?
- What remedial actions can be taken in situations in which employees refuse vaccinations and testing?
- What will OSHA consider “vaccinated” with regard to the number of shots, boosters and related waiting periods—especially in light of the recent Food and Drug Administration’s decisions to only allow boosters for a specific segment of the U.S. population?
- How will the standard address natural immunity? Should employees who have contracted COVID-19 be considered vaccinated?