OSHA Vaccine and Testing Emergency Temporary Standard On September 9, 2021, President Biden issued Executive Orders and guidance that requires most federal employees and federal contractors, as well as most healthcare workers, to be vaccinated against COVID- 19 or be subject to frequent testing for COVID-19. The most controversial aspect of the President’s orders was his directive that the Department of Labor’s Occupational Safety and Health Administration (OSHA) develop an Emergency Temporary Standard (ETS) that will place vaccine and testing requirements on private-sector businesses with more than 100 employees. With regard to the vaccine and testing requirements of federal contractors, the President’s Executive Order makes clear that it does not apply to federal grantees and it includes an express exemption for “contracts or agreements with Indian tribes under the Indian Self-Determination and Education Assistance Act”. On November 5, 2021, OSHA issued its ETS that applies to private-sector businesses with more than 100 employees. The ETS seeks to increase vaccination rates to reach herd immunity and put an end to the COVID-19 pandemic. However, it imposes costly and time-consuming mandates on covered employers. Under the ETS, employers must implement the following requirements by January 4, 2022: ● require all workers to receive the vaccine or undergo weekly COVID-19 testing and mask wearing. ● determine the vaccination status of each employee, and maintain a record of status. ● provide employees paid time to receive each vaccination dose, and paid sick leave to recover. ● require employees to promptly provide notice of a positive COVID-19 test, and keep such employees out of the workplace until they meet criteria for returning to work. ● report work-related COVID-19 fatalities and hospitalizations to OSHA in a timely manner. ● make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written consent of the employee. OSHA’s ETS does not apply to state or local government employers, which are permitted to establish their own local standards for all state employees. It remains unclear whether Tribal Government-owned enterprises will be subject to the OSHA ETS. Tribes nationwide have implemented some of the strictest precautions to prevent spread of the virus. While Indian tribes support the goal of the ETS to defeat the pandemic, enforcing the ETS on Tribal Government-owned and operated enterprises violates Tribal sovereignty and ignores local Tribal Government laws and decision-making. Tribes have debated a similar issue with the Labor Department’s National Labor Relations Board (NLRB) for decades. In 1974, the NLRB held the position that although Tribes are not expressly mentioned in the Act’s exemption for state and local governments, the “government exemption” applies to Tribes as sovereigns. That case involved a Tribally-owned timber enterprise. In 2002, the NLRB reversed its 1974 decision, establishing a new test that permits agencies to differentiate the scope of tribal employment as either “governmental” or “commercial”. Tribal Government-owned enterprises are not private sector business. Instead, they are essential arms of Tribal Government treasuries that are in some cases wholly relied upon to generate revenue for critical community programs and services. OSHA held an initial Tribal Leader briefing on November 5, 2021. However, it completely failed to consult with Tribes in advance of issuing the ETS. After the briefing, OSHA reiterated its position that “OSHA standards generally apply to Tribally owned commercial enterprises, but not traditional governmental Tribal activities.” OSHA further stated that it will not enforce the ETS on Tribally-owned enterprises “until it completes full and meaningful Tribal consultation”, which it claims will take place “as soon as possible to determine whether and how this ETS applies to tribal enterprises, and, where the ETS is applicable, provide additional time after that consultation for them to come into compliance.”
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