[Joint House and Senate Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
PROTECTING LIVES AND LIVELIHOODS:
VACCINE REQUIREMENTS AND EMPLOYEE
ACCOMMODATIONS
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON
WORKFORCE PROTECTIONS
AND THE
SUBCOMMITTEE ON
CIVIL RIGHTS AND
HUMAN SERVICES
OF THE
COMMITTEE ON EDUCATION AND LABOR
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, OCTOBER 26, 2021
__________
Serial No. 117-31
__________
Printed for the use of the Committee on Education and Labor
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: edlabor.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
46-027 PDF WASHINGTON : 2022
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COMMITTEE ON EDUCATION AND LABOR
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
RAUL M. GRIJALVA, Arizona VIRGINIA FOXX, North Carolina,
JOE COURTNEY, Connecticut Ranking Member
GREGORIO KILILI CAMACHO SABLAN, JOE WILSON, South Carolina
Northern Mariana Islands GLENN THOMPSON, Pennsylvania
FREDERICA S. WILSON, Florida TIM WALBERG, Michigan
SUZANNE BONAMICI, Oregon GLENN GROTHMAN, Wisconsin
MARK TAKANO, California ELISE M. STEFANIK, New York
ALMA S. ADAMS, North Carolina RICK W. ALLEN, Georgia
MARK DeSAULNIER, California JIM BANKS, Indiana
DONALD NORCROSS, New Jersey JAMES COMER, Kentucky
PRAMILA JAYAPAL, Washington RUSS FULCHER, Idaho
JOSEPH D. MORELLE, New York FRED KELLER, Pennsylvania
SUSAN WILD, Pennsylvania GREGORY F. MURPHY, North Carolina
LUCY McBATH, Georgia MARIANNETTE MILLER-MEEKS, Iowa
JAHANA HAYES, Connecticut BURGESS OWENS, Utah
ANDY LEVIN, Michigan BOB GOOD, Virginia
ILHAN OMAR, Minnesota LISA C. McCLAIN, Michigan
HALEY M. STEVENS, Michigan DIANA HARSHBARGER, Tennessee
TERESA LEGER FERNANDEZ, New Mexico MARY E. MILLER, Illinois
MONDAIRE JONES, New York VICTORIA SPARTZ, Indiana
KATHY E. MANNING, North Carolina SCOTT FITZGERALD, Wisconsin
FRANK J. MRVAN, Indiana MADISON CAWTHORN, North Carolina
JAMAAL BOWMAN, New York, Vice-Chair MICHELLE STEEL, California
MARK POCAN, Wisconsin JULIA LETLOW, Louisiana
JOAQUIN CASTRO, Texas Vacancy
MIKIE SHERRILL, New Jersey
JOHN A. YARMUTH, Kentucky
ADRIANO ESPAILLAT, New York
KWEISI MFUME, Maryland
Veronique Pluviose, Staff Director
Cyrus Artz, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
ALMA S. ADAMS, North Carolina, Chairwoman
MARK TAKANO, California FRED KELLER, Pennsylvania,
DONALD NORCROSS,New Jersey Ranking Member
PRAMILA JAYAPAL, Washington ELISE M. STEFANIK, New York
ILHAN OMAR, Minnesota MARIANNETTE MILLER-MEEKS, Iowa
HALEY M. STEVENS, Michigan BURGESS OWENS, Utah
MONDAIRE JONES, New York BOB GOOD, Virginia
JOHN A. YARMUTH, Kentucky MADISON CAWTHORN, North Carolina
ROBERT C. ``BOBBY'' SCOTT, Virginia MICHELLE STEEL, California
VIRGINIA FOXX, North Carolina (ex
officio)
SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES
SUZANNE BONAMICI, Oregon, Chairwoman
ALMA S. ADAMS, North Carolina RUSS FULCHER, Idaho, Ranking
JAHANA HAYES, Connecticut Member
TERESA LEGER FERNANDEZ, New Mexico GLENN THOMPSON, Pennsylvania
FRANK J. MRVAN, Indiana LISA C. McCLAIN, Michigan
JAMAAL BOWMAN, New York VICTORIA SPARTZ, Indiana
KWEISI MFUME, Maryland SCOTT FITZGERALD, Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia VIRGINIA FOXX, North Carolina (ex
(ex officio) officio)
C O N T E N T S
----------
Page
Hearing held on October 26, 2021................................. 1
Statement of Members:
Adams, Hon. Alma S., Chairwoman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Keller, Hon. Fred, Ranking Member, Subcommittee on Workforce
Protections................................................ 3
Prepared statement of.................................... 4
Bonamici, Hon. Suzanne, Chairwoman, Subcommittee on Civil
Rights
and Human Services......................................... 5
Prepared statement of.................................... 5
Fulcher, Hon. Rich, Ranking Member, Subcommittee on Civil
Rights
and Human Services......................................... 6
Prepared statement of.................................... 7
Statement of Witnesses:
Dorfman, Doron, Associate Professor of Law, Syracuse
University College of Law.................................. 77
Prepared statement of.................................... 79
Hecker, Scott, Senior Counsel, Seyfarth Shaw LLP............. 20
Prepared statement of.................................... 22
Luther, Richelle, Senior Vice President, Corporate Affairs
and Chief Human Resources Officer, Columbia Sportswear
Company.................................................... 16
Prepared statement of.................................... 18
Shapiro, Sidney, Frank U. Fletcher Chair in Administrative
Law and Professor of Law, Wake Forest University School of
Law........................................................ 8
Prepared statement of.................................... 10
Additional Submissions:
Chairmn Scott:
Prepared statement of Rachel K. Laser, President and CEO
and Dena Sher, Associate Vice President of Public
Policy, Americans United for Separation of Church and
State.................................................. 126
Prepared statement of Douglas Laycock, University of
Virginia Law School.................................... 135
Hayes, Hon. Jahanna, a Representative in Congress from the
State of Connecticut:
``Only 5% Of Worshippers Say Religious Leaders
Discouraged Covid Vaccines--Despite Growing Interest In
`Religious Exemptions,''' Forbes, October 15, 2021..... 156
``Faithful Texans are called to protect their
communities. Vaccines and masks do just that.'' San
Antonio Report, September 18, 2021..................... 160
Prepared statement from the Interfaith Alliance.......... 163
``Many faith leaders say no to endorsing vaccine
exemptions,'' Associated Press, September 17, 2021..... 167
``White evangelical Protestants less likely to have been
vaccinated for COVID-19 than other religious groups,''
Pew Research Center, September 17, 2021................ 170
``U.S. Evangelical Leaders Preach Covid Vaccine Benefits
to Their Followers,'' Bloomberg, March 26, 2021........ 171
``Our moral duty. We're called to love, protect others,''
Arkansas Democrat-Gazette, August 28, 2021............. 175
``Will Evangelical Leaders Receive the COVID-19
Vaccine?'' National Association of Evangelicals,
January February 2021.................................. 178
Yarmouth, Hon. John A., a Representative in Congress from the
State of Kentucky:
``Reduced Risk of Reinfection with SARS-CoV-2 After
COVID-19 Vaccination--Kentucky, May-June 2021,
Morbidity and Mortality Weekly Report, U.S. Department
of Health and Human Services, Centers for Disease
Control and Prevention................................. 153
Mr. Keller:
Prepared statement of NFIB............................... 180
Prepared statement of NATSO.............................. 183
Letter dated September 27, 2021 from CISC................ 187
Letter dated October 26, 2021 from NAHB.................. 197
Letter dated October 26, 2021 from NSSGA................. 199
Stefanik, Hon. Elise, a Representative in Congress from the
State of New York:
Letter dated October 21, 2021 from HR Policy Association. 201
PROTECTING LIVES AND LIVELIHOODS:
VACCINE REQUIREMENTS AND EMPLOYEE
ACCOMMODATIONS
----------
Tuesday, October 26, 2021
House of Representatives,
Subcommittee on Workforce Protections,
Subcommittee on Civil Rights and Human Services,
Committee on Education and Labor,
Washington, DC.
The Subcommittees met, pursuant to notice, at 10:16 a.m.,
via Zoom, Hon. Alma S. Adams
[Chairwoman of the Subcommittee on Workforce Protections]
presiding.
Present: Representatives Adams, Bonamici, Scott (ex
officio), Norcross, Jayapal, Hayes, Omar, Stevens, Leger
Fernandez, Mrvan, Bowman, Yarmuth, Keller, Fulcher, Stefanik,
Miller-Meeks, Owens, Good, McClain, Spartz, Fitzgerald,
Cawthorn, Steel, and Foxx (ex officio).
Also present: Representatives Allen and Murphy.
Staff present: Phoebe Ball, Disability Counsel; Ilana
Brunner, General Counsel; Ijeoma Egekeze, Professional Staff;
Rasheedah Hasan, Chief Clerk; Sheila Havenner, Director of
Information Technology; Eli Hovland, Policy Associate; Carrie
Hughes, Director of Health and Human Services; Ariel Jona,
Policy Associate; Andre Lindsay, Policy Associate; Richard
Miller, Director of Labor Policy; Max Moore, Staff Assistant;
Mariah Mowbray, Clerk/Special Assistant to the Staff Director;
Kayla Pennebecker, Staff Assistant; Veronique Pluviose, Staff
Director; Robert Shull, Labor Policy Staff; Theresa Thompson,
Professional Staff; Banyon Vassar, Deputy Director of
Information Technology; Tanisha Wilburn, Director of Labor
Oversight and Counsel; Cyrus Artz, Minority Staff Director;
Michael Davis, Minority Operations Assistant; Rob Green,
Minority Director of Workforce Policy; Georgie Littlefair,
Minority Legislative Assistant; John Martin, Minority Deputy
Director of Workplace Policy/Counsel; Hannah Matesic, Minority
Director of Member Services and Coalitions; Kelly Tyroler,
Minority Professional Staff Member; and John Witherspoon,
Minority Professional Staff Member.
Chairwoman Adams. Good morning. We are ready to begin our
countdown from five and then we'll start. Five, four, three,
two, one. The Subcommittee on Workforce Protections and the
Subcommittee on Civil Rights and Human Services will come to
order.
Welcome everyone. I note that a quorum is present. I note
for the Subcommittees that Mr. Allen of Georgia and Mr. Murphy
of North Carolina and Ms. Miller of Illinois are permitted to
participate in today's hearing with the understanding that
their questions will come only after all members of the Joint
Subcommittee on both side of the aisle who are present have had
an opportunity to question the witnesses.
The Subcommittees are meeting today for a joint hearing to
hear testimony on Protecting Lives and Livelihoods: Vaccine
Requirements and Employee Accommodations. This is an entirely
remote hearing, and as such the Committee's hearing room is
officially closed. All microphones will be kept muted, as a
general rule, to avoid unnecessary background noise, and
members and witnesses will be responsible for unmuting
themselves when they're recognized to speak, or when they wish
to seek recognition.
If a member or witness experiences technical difficulties
during the hearing, please stay connected on the platform, make
sure you're muted, and use your phone to immediately call the
Committee's IT director whose number was provided in advance.
Should the Chair experience technical difficulty, or need
to step away, Chair Bonamici or another majority member is
hereby authorized to assume the gavel in the Chair's absence.
In order to ensure that the Committee's five-minute rule is
adhered to, staff will be keeping track of time using the
Committee's digital timer, which appears in its own thumbnail
picture. Members and witnesses are asked to wrap up promptly
when their time has expired.
Pursuant to Rule 8(c) opening statements are limited to the
Chairs and Ranking Members. This allows us to hear from our
witnesses sooner, and it provides all members with adequate
time to ask questions. I recognize myself now for the purpose
of making an opening statement.
Today we're examining the role of workplace vaccine
policies in protecting workers against COVID-19 and
accelerating our economic recovery. I want to begin by
reiterating a basic fact that should guide today's discussion.
COVID-19 vaccines are the most effective tool that we have to
save worker's lives and defeat the pandemic.
Roughly 80 percent of American adults have received at
least one dose and can confidently say that vaccines are safe,
effective, and necessary to prevent the spread of COVID-19 in
our communities and in our workplaces. Yet there are more than
82 million people not yet vaccinated. Far too many of our
Nation's workers are still suffering from the worst workplace
crisis in recent history.
Workplace COVID-19 outbreaks are continuing to endanger
workers and their families, and many of these outbreaks have
been linked to unvaccinated workers. Thankfully, we've seen
responsible employers take the initiative to implement
workplace safety policies, including vaccination requirements
to keep their employees safe.
Some of the largest employers in the country, including
Bank of America in my district, already have vaccination
requirements, and more companies are stepping up to require
vaccinations each week. At the moment, with the vaccine being
free and available., it's clear that the most effective way to
boost vaccination rates is through workplace vaccination
requirements.
And this is why the Occupational Safety and Health
Administration is expected to soon issue an emergency temporary
standard, or ETSETS, that requires employers to implement
vaccination and testing policies for their workers. This
standard would go a long way to fulfilling our ultimate
responsibility during this pandemic, which is to save lives and
end the pandemic.
I hope that all of my colleagues will agree that workplace
vaccination requirements are a critical tool to safely reopen
our economy and protect the health of workers, their families,
and their communities. I do want to thank our witnesses today.
[The statement of Chairwoman Adams follows:]
Statement of Hon. Alma S. Adams, Chairwoman, Subcommittee on
Workforce Protections
Today, we are examining the role of workplace vaccine policies in
protecting workers against COVID-19 and accelerating our economic
recovery.
I want to begin by reiterating a basic fact that should guide
today's discussion: COVID-19 vaccines are the most effective tool that
we have to save workers' lives and defeat the pandemic.
Roughly 80 percent of American adults have received at least one
dose, and can confidently say that vaccines are safe, effective, and
necessary to prevent the spread of COVID-19 in our communities and in
our workplaces.
Yet, with more than 82 million people not yet vaccinated, far too
many of our Nation's workers are still suffering from the worst
workplace safety crisis in recent history.
Workplace COVID-19 outbreaks are continuing to endanger workers and
their families. And many of these outbreaks have been linked to
unvaccinated workers.
Thankfully, we've seen responsible employers take the initiative to
implement workplace safety policies, including vaccination
requirements, to keep their employees safe.
Some of the largest employers in the country, including Bank of
America in my district, already have vaccination requirements. And more
companies are stepping up to require vaccinations each week.
After months of the vaccine being free and available, it is clear
that the most effective way to boost vaccination rates is through
workplace vaccination requirements.
This is why the Occupational Safety and Health Administration is
expected to soon issue an emergency temporary standard, or ETS, that
requires employers to implement vaccination and testing policies for
their workers.
This standard would go a long way toward fulfilling our ultimate
responsibility during this pandemic, which is to save lives and end the
pandemic.
I hope that all my colleagues will agree that workplace vaccination
requirements are a critical tool to safely reopen our economy and
protect the health of workers, their families, and their communities.
I want to thank our witnesses today.
______
I'm now pleased to recognize the distinguished Ranking
Member of the Workforce Protection Subcommittee, Mr. Keller,
for the purpose of making an opening statement.
Mr. Keller. Thank you, Madam Chair. The Biden
administration has created uncertainty and confusion throughout
its politicized COVID-19 policy. President Biden has resorted
to weaponizing the Federal bureaucracy, turning employers into
the vaccine and testing police on behalf of the Federal
Government.
OSHA's sweeping and inappropriate Federal mandate will have
devastating consequences. This unprecedented national mandate
will put undue burden on business owners who are already
struggling with a worker shortage and a supply chain crisis.
Our job creators should not be expected to assume the
responsibility for the private medical decisions of their
employees. From manufacturing and energy to retail and
hospitality, our team has heard from countless job creators in
Pennsylvania's 12th congressional District that say this
mandate will crush their operations.
We have heard from rural hospitals and correctional
officers who operate in industries where qualified workers were
sorely needed, even before Federal vaccine mandates were
proposed by President Biden. We have now held them back even
further by damaging their ability to retain workers.
After over a year of struggling to get by, businesses need
a leg up, not more costly regulation and mandates. Further,
this Federal Government mandate is almost certainly unlawful.
On September 9th, President Biden ordered OSHA to enact a broad
and sweeping public health measure under the guise of workplace
safety.
Since OSHA was established 50 years ago, only 10 emergency
temporary standards, or ETSs, have been issued, and nearly all
that were challenged have been rejected by Federal courts. The
Biden administration's vaccine mandate is another power grab by
Democrats to make America an authoritarian socialist State
where they and Washington know best.
OSHA's vaccine mandate exceeds the authority delegated to
it by Congress and turns private employers into the Federal
Government's enforcement arm; and the extreme and punitive
fines the Biden administration threatens to level on any
business that refuses to comply shows that it will bulldoze any
resistance.
We must stand up to this massive and almost certainly
illegal government overreach. With that, I yield back.
[The statement of Ranking Member Keller follows:]
Statement of Hon. Fred Keller, Ranking Member, Subcommittee on
Workforce Protections
The Biden administration has created uncertainty and confusion
through its politicized COVID-19 policy.
President Biden has resorted to weaponizing the Federal
bureaucracy, turning employers into the vaccine and testing police on
behalf of the Federal Government.
OSHA's sweeping and inappropriate Federal mandate will have
devastating consequences.
This unprecedented national mandate will put undue burdens on
business owners who are already struggling with a worker shortage and a
supply chain crisis.
Our job creators should not be expected to assume the
responsibility for the private medical decisions of their employees.
From manufacturing and energy to retail and hospitality, our team
has heard from countless job creators in Pennsylvania's 12th
congressional District that say this mandate will crush their
operations. We have heard from rural hospitals and correctional
officers, who operate in industries where qualified workers were sorely
needed even before Federal vaccine mandates were proposed by President
Biden. We have now held them back even further by damaging their
ability to retain workers.
After over a year of struggling to get by, businesses need a leg
up, not more costly regulations and mandates.
Further, this Federal Government mandate is almost certainly
unlawful.
On September 9th, President Biden ordered OSHA to enact a broad and
sweeping public health measure under the guise of 'workplace safety.'
Since OSHA was established 50 years ago, only 10 emergency
temporary standards
have been issued, and nearly all that were challenged have been
rejected by Federal courts.
The Biden administration's vaccine mandate is another power grab by
Democrats to make America an authoritarian socialist State where they
and Washington know best.
OSHA's vaccine mandate exceeds the authority delegated to it by
Congress and turns private employers into the Federal Government's
enforcement arm.
And the extreme and punitive fines the Biden administration
threatens to level on any business that refuses to comply shows that it
will bulldoze any resistance.
We must stand up to this massive and almost certainly illegal
government overreach.
______
Chairwoman Adams. Thank you. I now recognize the
distinguished Chair of the Subcommittee on Civil Rights and
Human Services for the purpose of making an opening statement.
Chairwoman Bonamici. Thank you, Chair Adams, for leading
this hearing today, and to the Ranking Members for joining us
for this important topic and thank you especially to our
witnesses for providing their experience and expertise.
In 1999 the Centers for Disease Control and Prevention
identified vaccinations as the greatest public health
achievement of the 20th Century. Vaccinations have eradicated
highly contagious diseases around the world, and vaccination
requirement programs have played a key role in preventing
contagion of deadly viral outbreaks. Today, children in Oregon
and every other U.S. State and territory are required to be
vaccinated against several different viruses, such as polio,
before they attend school. And notably, no cases of polio have
originated in the United States since 1979.
This is important context for today's discussion about the
role of Coronavirus vaccine requirements for ending the COVID-
19 pandemic. The rapid spread of the Delta variant of the
Coronavirus continues to threaten the health and safety of
Americans, and it is now evident that the decision to get
vaccinated is not just about protecting one individual, it's a
decision that affects everyone around us.
For certain groups of workers, including older workers,
workers with disabilities, and other workers with underlying
health conditions, the risks associated with COVID-19 are
potentially even more deadly. Even those fully vaccinated face
a small possibility of a serious breakthrough infection.
During the global pandemic, our priority must be to protect
the rights and freedoms of the vulnerable individuals to work
and to contribute to our economy--not to protect the ability of
individuals to endanger others. And I truly applaud the
leadership demonstrated by Oregon-based Columbia Sportswear,
who is here today, representing themselves as well as other
employers that recognize that vaccine requirements protect
their employees and their communities and the families of their
employees.
Across the country employers are demonstrating that these
policies work. Today we have an opportunity to discuss how
workplace vaccine requirements can protect both the lives and
livelihoods of all workers, particularly those at higher risk
of serious illness or death from COVID-19. So, thank you again
for our expert witnesses today.
[The prepared statement of Chairwoman Bonamici follows:]
Statement of Hon. Suzanne Bonamici, Chairwoman, Subcommittee on Civil
Rights and Human Services
Thank you, Chair Adams, for leading this hearing and to the Ranking
Members for joining us for this important topic. And thank you,
especially, to our witnesses for providing their experience and
expertise.
In 1999, the Centers for Disease Control and Prevention identified
vaccination as the greatest public health achievement of the 20th
century. Vaccinations have eradicated highly contagious diseases around
the world and vaccination requirement programs have played a key role
in preventing contagion and deadly viral outbreaks.
Today, children in Oregon and every other U.S. State and territory
are required to be vaccinated against several different viruses, such
as Polio, before they attend school. Notably, no cases of polio have
originated in the United States since 1979.
That is important context for today's discussion about the role of
vaccine requirements in ending the COVID-19 pandemic.
The rapid spread of the Delta variant of the coronavirus has
continued to threaten the health and safety of American workers. It is
now evident that the decision to get vaccinated is not just about
protecting one individual. It is a decision that affects everyone
around us.
For certain groups of workers-including older workers, workers with
disabilities, and other workers with underlying health conditions-the
risks associated with COVID-19 are potentially even more deadly. Even
those fully vaccinated face a small possibility of a serious
breakthrough infection.
During the global pandemic, our priority must be to protect the
rights and freedoms of vulnerable individuals to work and to contribute
to our economy-not the ability of individuals to endanger others.
I truly applaud the leadership demonstrated by Oregon-based
Columbia Sportswear, who is represented here today, as well as other
employers who recognize that vaccine requirements protect their
employees and their communities--and the families of their employees.
Across the country, businesses are demonstrating that these
policies work.
Today, we have an opportunity to discuss how workplace vaccine
requirements can protect both the lives and
livelihoods of all workers, particularly those at higher risk of
serious illness or death from COVID-19.
Thank you, again, to our expert witnesses today.
______
I'm now pleased to turn it over to the Ranking Member of
the Civil Rights and Human Services Subcommittee, Mr. Fulcher--
welcome back, nice to see you, hope you're doing well--for his
opening statement.
Mr. Fulcher. Thank you so much for that, and Madam Chair, I
appreciate this time. Madam Chair, there's just no way around
it. President Biden's vaccine mandate is bad for workers. It's
bad for business, and it's bad for the economy. It is also an
affront to the personal liberties that Americans hold dear.
A major shortage is already contributing to a supply chain
backup. In response to similar State and Federal mandates, many
private companies have begun firing workers who refuse the
COVID-19 vaccine.
This Federal vaccine mandate will worsen the supply chain
crisis, almost guaranteeing Americans will go without needed
supplies through the Christmas season. Current government
mandates have created chaos at airports, weakened police
forces, and put our healthcare system in jeopardy. In
September, a hospital in upstate New York was so understaffed
after unvaccinated medical personnel resigned that the hospital
was forced to stop delivering babies. Yet babies come when it's
time for them to, whether there's a staffing shortage or not.
These problems will only get worse once President Biden's
OSHA vaccine and testing mandate is issued. We cannot afford to
lose more workers. This coercive government mandate will
compound the crisis facing our Nation. Instead of empowering
American workers and job creators, my friends on the other side
of the aisle are forcing Main Street to fire workers.
This is the surest way to hurt our economy. This ill-
advised degree will create substantial uncertainty, costs, and
liabilities. The last thing Main Street needs is another
unfunded mandate dictated from Washington. Harsh fines for
violating President Biden's mandate could also decimate small
businesses. This is not building back better--it's crushing the
job creators and American workers under the heavy hand of
government intervention. Madam Chair, I yield back.
[The prepared statement of Mr. Fulcher follows:]
Statement of Hon. Rich Fulcher, Ranking Member, Subcommittee on Civil
Rights and Human Services
There's no way around it. President Biden's vaccine mandate is bad
for workers, it's bad for business, and it's bad for the economy. It is
also an affront to the personal liberties Americans hold dear.
A major labor shortage is already contributing to a supply chain
backup. In response to similar State and Federal mandates, many private
companies have begun firing workers who refuse the COVID-19 vaccine.
This Federal vaccine mandate will worsen the supply chain crisis,
almost guaranteeing Americans will go without this Christmas.
Current government mandates have created chaos at airports,
weakened police forces, and put our health care system in jeopardy.
In September, a hospital in upstate New York was so understaffed
after unvaccinated medical personnel resigned that the hospital was
forced to stop delivering babies. Yet babies come when it's time for
them to, whether there's a staffing shortage or not.
These problems will only worsen once President Biden's OSHA vaccine
and testing mandate is issued.
We can't afford to lose more workers. This coercive government
mandate will compound the crises facing our Nation.
Instead of empowering American workers and job creators, my friends
on the other side of the aisle are forcing main street to fire workers.
This is the surest way to hurt our economy.
This ill-advised decree will create substantial uncertainty, costs,
and liabilities. The last thing main street needs is another unfunded
mandate dictated from Washington.
Harsh fines for violating President Biden's mandate could also
decimate small businesses.
This is not building back better. It's crushing the job creators
and American workers under the heavy hand of government intervention.
______
Chairwoman Adams. Thank you. Without objection, all of the
members who wish to insert written statements into the record
may do so by submitting them to the Committee Clerk
electronically in Microsoft Word by 5 p.m. on November 9, 2021.
I will now introduce the witnesses.
Professor Sidney Shapiro is the Frank U. Fletcher Chair in
Administrative Law at Wake Forest University School of Law, and
the Vice President of the Center for Progressive Reform, whose
career has included government service and extensive writing on
occupational safety and health and administrative law,
including the 1993 book Workers at Risk: The Failed Promise:
The Failed Promise of the Occupational Safety and Health
Administration.
Scott Hecker is Senior Counsel at Seyfarth Shaw LLP, whose
practice areas have included the Occupation Safety and Health
Act, Fair Labor Standards Act, and other labor and employment
laws matters on which he developed expertise through previous
government service in the Solicitor of Labor's Office.
Professor Doron Dorfman is an Associate Professor of Law at
Syracuse University College of Law. His interdisciplinary
analysis research focuses on disability law and health law. He
teaches torts, health law, employment discrimination, and
disability law.
I'm pleased to recognize my colleague, the distinguished
Chair of the Subcommittee on Civil Rights and Human Services,
to briefly introduce her constituent, who's appearing before us
as a witness today. I yield 30 seconds to Chair Bonamici to
introduce.
Chairwoman Bonamici. Thank you, Chair Adams. It's my
pleasure to introduce Richelle Luther, Senior Vice President of
Corporate Affairs and Chief Human Resources Officer at Columbia
Sportswear, which is headquartered in Northwest Oregon. Ms.
Luther has worked at Columbia Sportswear for more than 13
years. She's currently responsible for strategies to attract,
retain, and motivate employees.
And previously, she served as Deputy General Counsel for
the company. She's also served as Chief Governance Officer and
Corporate Secretary for the Northwest Natural Gas Company and
has worked in private practice. I want to thank Ms. Luther for
spending time with the Committee this morning, providing an
important perspective from the business community.
I look forward to hearing more about the important work
Columbia Sportswear is doing to promote employee vaccination,
company-wide safety, and public health, I yield back.
Chairwoman Adams. Thank you, Chair Bonamici. We appreciate
the witnesses for participating today and look forward to your
testimony. Your written statement will appear in full in the
hearing record, and you're asked to limit your oral
presentation to a five-minute summary.
And after your presentation we'll move to member questions.
So, the witnesses are aware of their responsibility to provide
accurate information to the Joint Subcommittee, and therefore
we will proceed with their testimony. So, I will now recognize,
first, Professor Sidney Shapiro. We will now hear from
Professor Shapiro; you have five minutes.
STATEMENT OF DR. SIDNEY SHAPIRO, FRANK U. FLETCHER CHAIR IN
ADMINISTRATIVE LAW AND PROFESSOR OF LAW, WAKE FOREST UNIVERSITY
SCHOOL OF LAW
Mr. Shapiro. Thank you, Chair Adams and Bonamici, Ranking
Members Keller and Fulcher, and members of the Subcommittee.
Thank you for inviting me to share my views on vaccine
standards and employer accommodations.
The Court has noted that an emergency temporary standard,
or ETS, is (and I'm quoting), ``An unusual response to
exceptional circumstances.''
There could be no doubt that COVID-19 qualifies as an
exceptional circumstance, requiring unusual responses. My
testimony focuses on four conclusions about anon the OSHA ETS.
First, OSHA has the legal authority to issue an ETS requiring
vaccines and testing. The risk to employees from COVID is a
great one, because exposed workers can die of the disease or
become seriously ill.
The protection of an ETS is necessary because workers are
likely to die from workplace exposures during the 6-months or
so period before a permanent standard is issued. One court has
indicated that an ETS is necessary if at least 80 workers are
at risk of dying in the 6-month period.
Unfortunately, this death toll is likely if there's no ETS.
COVID is different than the other hazards OSHA has attempted to
regulate with an ETS. According to the Courts, OSHA lacked
sufficient evidence that those hazards will put workers
immediately at risk, because the evidence it had concerned
long-term exposure to a cancer-causing substance. By
comparison, workers are immediately at risk if they're exposed
to COVID. It is true the situation is improving, but not
everywhere, not for certain, and COVID, unfortunately is not
going to go away.
I would also note that the Courts have previously upheld
OSHA standards addressing noise and diseases caused by blood-
borne pathogens, even though neither is unique to the
workplace, because both constituted a significant risk during
employment.
My second point is that OSHA is legally mandated to require
vaccines and testing.
Congress required OSHA to adopt the standard that most
adequately assures that workers will not die or become
seriously ill. OSHA must therefore require vaccines or testing
if it has evidence that other precautions, such as mask
wearing, are not sufficiently protective.
My third conclusion is that OSHA's decision to require
vaccines and testing is appropriate considering the evolving
understanding of the best way to protect workers. The existing
ETS was promulgated at a time in the country when it appeared
possible that most Americans would become vaccinated, and
before there were pandemic levels of COVID due to the Delta
variant.
Finally, a vaccine requirement is exactly the sort of
sensible safeguard that this country has taken going back to
the days of George Washington, when he mandated what amounted
to a crude precursor to the smallpox vaccine for soldiers
stationed in Valley Forge during the fabled winter of 1777.
More, the Supreme Court has recognized since 1905 that the
imposition of a vaccine requirement is not a violation of a
person's liberty. As the Court said (and here I'm quoting),
``Society based on the rule that each one is a law unto himself
would soon be confronted with disorder and anarchy. The
enjoyment of all rights are subject to such reasonable
conditions as they have been deemed necessary by the governing
authority of a country essential to the safety and health of
the community.''
I thank you again for this opportunity to testify, and I
look forward to responding to your questions.
[The prepared statement of Mr. Shapiro follows:]
Prepared Statement of Sidney Shapiro
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Adams. Thank you, Professor Shapiro. We'll now
hear from Ms. Luther. You have five minutes.
STATEMENT OF MS. RICHELLE LUTHER, SENIOR VICE PRESIDENT,
CORPORATE AFFAIRS AND CHIEF HUMAN RESOURCES OFFICER, COLUMBIA
SPORTSWEAR COMPANY
Ms. Luther. Thank you. Thank you, Chair Adams and Bonamici,
Ranking Members Keller and Fulcher, members of the
Subcommittees; thank you for the invitation to testify. My name
is Richelle Luther, and I am the Senior Vice President of
Corporate Affairs and Chief Human Resources Officer for
Columbia Sportswear Company.
We are a global company headquartered in Portland, Oregon.
We have more than 8,000 employees worldwide. We sell our goods
in 90 countries, and we have more than 100 stores in almost
every State in this country. When the pandemic hit in the
United States, like other retailers we shut down all of our
U.S. stores and sent headquarters employees home. Our U.S.
distribution centers and call centers in Portland and in
Kentucky stayed open, continuing to fulfill online orders.
Our stores gradually began opening as states began
returning to business. Our headquarters employees still are not
in the office yet, but we have plans to have everyone back in
the office by the end of the first quarter in 2022.
In order to reopen safely, we have taken extraordinary
measures with sanitation, distancing, physical barriers, and of
course, masks. Our CEO, Tim Boyle, is a vocal component of
vaccinations. His aunt, Hildegarde Lamfrom, was one of the
early researchers who contributed to the development of the
polio vaccine.
Since the COVID-19 vaccines have become available, he has
personally encouraged and exhorted our employees to get
vaccinated. He has authorized paid time off to receive the
shot, as well as catastrophic paid leave if an employee has an
adverse reaction to the vaccine.
He encouraged employees to volunteer at mass vaccination
sites, doing so himself, and with paid leave to do so. We
brought mobile clinics to our headquarters and distribution
centers to make it easy for people to get vaccinated. We have
concluded that these efforts are not yet sufficient,
particularly in light of the Delta variant and potential future
variants.
We still have too many unvaccinated employees. We were on
the brink of mandating vaccinations for our employees when
President Biden announced a vaccine mandate for employers with
more than 100 people. We celebrated this announcement as a tool
to help us achieve our goal of full vaccination.
In this labor market, we appreciate the government support
in leveling the playing field to enable us to do the right
thing. If all companies mandate vaccinations as a condition of
employment, we will be able to retain our valued employees and
keep our company in business. We don't want to lose our
employees to locations or companies that do not vaccinate/have
vaccination mandates.
One of the biggest struggles the last 2 years is that we
are dealing with an ever-changing patchwork of health and
safety regulations that in many cases have differed not just by
State, but by county. At one critical moment, as we were trying
to reopen a store, we were unable to do so because the store
straddled two counties that were in different stages of
reopening.
A Federal mandate is needed. We do not believe it is a
question of more regulation for business, but rather less. A
quilt of local laws and approaches created vastly more
regulation for our business, more uncertainty, more risk, and
more inefficiency. Implementing a vaccine mandate will indeed
be complex. We need guidance from the Federal Government on how
to process accommodations, particularly for religious
exemptions.
We are grappling with how to implement testing in our
retail environments. It will be logistically challenging and
extraordinarily expensive. Our goal is for everyone to be
vaccinated to help the country get past the pandemic, to create
economic growth and opportunity, and advance public safety.
One of the hallmarks of Columbia Sportswear is that we are
adept at innovation. We find ways to keep people warm, dry,
cool, and protected by their clothing when they are enjoying
activities. We have innovation here in the form of vaccines to
help us defeat the virus. We want to embrace the scientific
innovation and get everyone vaccinated so that vulnerable
children and adults with medical conditions that are not able
to be vaccinated will be protected.
We're an outdoor company. One of the things that defines
the outdoors and the appreciation of the world's natural
wonders where people of all backgrounds and viewpoints come
together. We need to come together to protect public health and
safety. We can do that by getting everyone vaccinated. Thank
you.
[The prepared statement of Ms. Luther follows:]
Prepared Statement of Richelle Luther
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Adams. Thank you very much. Next, we'll hear
from Scott Hecker. You have five minutes, sir.
STATEMENT OF MR. SCOTT HECKER, SENIOR COUNSEL, SEYFARTH SHAW
LLP
Mr. Hecker. Good morning, Chair Adams, Chair Bonamici,
Ranking Member Keller, Ranking Member Fulcher, and honorable
members of the Subcommittee on Workforce Protections, and
Subcommittee on Civil Rights and Human Services. It's an honor
and privilege to participate in the congressional process.
My name is Scott Hecker, and I am vaccinated against COVID-
19, as is my wife, Beth. We plan to get our children
vaccinated, Lauren and Kate, as soon as their age groups are
approved. COVID vaccines are effective, and from an
occupational safety and health perspective, vaccination
represents our best shot to beat the Coronavirus.
We should not politicize public health, and we should
follow the science, but we must adhere to the occupational
safety and health statutory requirements. Section 6(c) of the
OSH Act allows OSHA to issue emergency temporary standards
under certain defined circumstances.
OSHA must find that, one, employees are exposed to a great
danger. And two, an emergency standard is necessary to protect
employees from that danger. COVID-19 is a public health
concern, and OSHA doesn't have the experience or resources to
police conditions of public health. OSHA must explain why only
now COVID-19 has become a grave workplace danger across all
sectors and all businesses with more than 100 employees, when 4
months ago, OSHA published a narrowly focused healthcare ETS
that did not include a vaccine mandate.
By pursuing alternative COVID-19 enforcement avenues and
trumpeting the successes of pre-ETS efforts to beat back the
virus, the Biden administration undercuts its own arguments
that an ETS is needed. Rather than pursuing a one-size-fits-all
approach, OSHA could have revised its COVID-19 guidance to
allow employers the flexibility to promulgate innovative and
current safety protocols that best fit the needs of their
industries, the remote workforces, their culture and their
supply chains.
Had OSHA been more communicative, employers could have
developed and implemented the best solutions for their
employees. Many employers have included a vaccination mandate
as part of their overall COVID-19 response programs, and
Seyfarth has shared its vaccine policy playbook 2.0 with its
clients to assist with just that.
I'm happy to supplement the record with the playbook if
that would be helpful.
ETSs are not a standard tool in OSHA's regulatory kit and
should be used sparingly to avoid degrading the necessary-to-
protect-against-grave-danger threshold established by Congress.
Of the 10 ETSs OSHA has issued to date, seven were
challenged, resulting in one being fully vacated, and another
partially vacated, and three stayed. Legal challenges will
likely be filed shortly after OSHA publishes its ETS, both by
State governments and by private employers.
While President Biden's COVID-19 action plan may have been
designed for uniformity, it may instead further complicate
employers? compliance efforts as they continue to deal with a
patchwork of rules and regulations to combat COVID. If the ETS
doesn't survive legal challenge, its failure could undermine
vaccine efforts more generally.
Open questions about the ETS continue to concern covered
companies, including how the costs of a testing option will be
allocated, how long we will have to ensure their employees?
compliance, what paid time offer requirements will look like,
under what circumstances remote workers may be covered, and how
the 100100-employee threshold will be calculated.
Results from a recent survey conducted by SHRM showed that,
quote, 'of organizations that meet the criteria for the Biden
administration's vaccine or testing requirement, 85 percent
said the anticipated requirements will make retaining employees
more difficult. 89 percent said some of their employees will
quit, due to the new mandate.''
Further, ``72 percent of the entities surveyed said the
vaccine or testing requirements will make maintaining regular
business operations more difficult.''
We don't yet know what's in the ETS, or the scientific
bases underlying these requirements. CDCCDC is considering what
it means to be fully vaccinated. And some groups are now
eligible for boosters.
If the CDCCDC doesn't know what fully vaccinated means,
OSHA can't either. If OSHA's definition of fully vaccinated
includes a booster, most of the population isn't authorized to
receive one yet, so you have an impossibility problem. If OSHA
doesn't include a booster requirement in defining fully
vaccinated, we could ask why not, when the CDCCDC is actively
reconsidering its definition. How can OSHA align with the best
available data now and also keep up with changes over the
course of the ETS 6-month span?
Vaccines work, and almost 190 million Americans are fully
vaccinated against COVID-19, but the unprecedented nature of
this national vaccine mandate and the uncertainties,
complexities, and impediments to implementing it through an
OSHA ETS suggest this avenue lacks legal and practical
viability. Thank you.
[The prepared statement of Mr. Hecker follows:]
Prepared Statement of Scott Hecker
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Adams. Thank you very much. Finally, we'll hear
from Professor Doron Dorfman. Professor, you have five minutes.
STATEMENT OF DR. DORON DORFMAN, ASSOCIATE PROFESSOR OF LAW,
SYRACUSE UNIVERSITY COLLEGE OF LAW
Mr. Dorfman. Thank you for the opportunity to testify
before you today. My name is Doron Dorfman, and I'm an
Associate Professor of Law at Syracuse University College of
Law. My areas of research and teaching are health law, anti-
discrimination law, and civil rights. Therefore, in my
testimony I focus only on civil rights and anti-discrimination
protections, and not on constitutional questions.
The question at the heart of the testimony is this: Can
employers require their employees to get vaccinated? The answer
to this question is yes, as long as it is consistent with civil
rights laws requirements to accommodate employees who are
covered under these laws.
In this testimony I focus on three protected groups:
religious employees, employees with disabilities, and pregnant
employees. I would like to start by stating that American work
law operates under the well-established rule of the employer's
prerogative and at-will employment, meaning that the employer
holds sole authority in the workplace, unless regulated or is
contracted otherwise.
Nothing in civil rights laws prevents employers from
maintaining a safe workplace, and so private employers have had
the discretion to initiate vaccine requirements on their own,
and in fact, 25 percent of private employers have done so
already, even before the OSHA ETS was proposed.
The only situation in which employees can ask for an
exemption from the vaccine requirement, as in as an
accommodation is a situation in which the employee belongs to a
protected group under civil rights laws. Unwillingness to get
vaccinated by employees who do not belong to a protected group
can result in a legal adverse employment action by the
employer.
Now, I want to give you a very brief overview of the
standards an employer needs to legally fulfill to accommodate
employees who belong to each one of the three groups. The
standards are based on current precedents by the Supreme Court.
Religious employees are covered under Title VII of the
Civil Rights Act of 1964. Under Title VII, an employer needs to
provide reasonable accommodations to employees sincerely
holding religious beliefs, as long as those accommodations do
not pose undue hardship on the employer. In 1977, the Supreme
Court, in a case called TWA versus Hardison, held that anything
more than a de minimis cost would create an undue hardship on
the employer and would allow the employer not to accommodate a
religious employee.
Cost is not only measured through financial means but also
through disruption to the workplace and burden on third
parties, like other employees. Risks to the health of other
employees due to the heightened chance of contracting COVID can
therefore be considered an undue hardship.
Other accommodations are available to employers who
maintain a healthy workplace, as long as they do not pose undue
hardship. Those accommodations include getting tested
periodically, working remotely, getting reassigned, or a
revised schedule. Those accommodations should be considered
under the disability accommodation mandate and a pregnancy
accommodation mandate as well.
Employees with disabilities are covered under Title I of
the Americans With Disabilities Act. An employer is not
required to accommodate a disabled employee if doing so would
pose a direct threat, meaning a significant risk to the health
or safety of others or to the health and safety of the employee
who requests the accommodation themselves.
Not being vaccinated could cause an outbreak at the
workplace. This could amount to a direct threat to the health
and safety of the rest of the employees, as well as the
employee who is asking for the disability accommodation. This
is specifically true if you take into account that many people
with disabilities are immune-compromised and are at heightened
risk of complications from COVID.
Finally, I want to talk about pregnant employees, who are
protected under Title VII. According to the Supreme Court in a
case called Young vs. UPS from 2015, the doctrine on pregnancy
accommodations is relational to other accommodated groups at
the workplace: meaning that in a situation in which a pregnant
employee asks for an exemption from the vaccine, the employer
will need to make sure to treat that employee in the same way
as other employees who are similarly situated in their ability
or inability to work who are not pregnant.
In conclusion, vaccine requirements are consistent with the
requirement of civil rights laws as long as the employer
evaluates whether certain employees are entitled to be
accommodated under the law. Thank you for your attention, and
I'm happy to answer any question you might have.
[The prepared statement of Mr. Dorfman follows:]
Prepared Statement of Doron Dorfman
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Adams. Thank you. Under Committee Rule 9(a), we
will now question witnesses under the five-minute rule. As this
is a joint Committee hearing, after the Chairs and Ranking
Members, I will be recognizing the Subcommittee members based
on seniority order on the full Committee. As Chair, I now
recognize myself for five minutes.
Thank you to my colleague, Chair Bonamici, and to my other
colleagues of the Subcommittees on Workforce Protections and
Civil Rights and Human Services for joining us today. And to
our witnesses, thank you as well for sharing your expertise.
We must understand both the law and our new reality brought
by the pandemic. This hearing could not have come at a more
timely juncture. Employees and employers must have a clear
understanding of any requirements at the workplace, ranging
from a dress code to a vaccine requirement. I look forward to
the witnesses? answers that they shed further light on
mitigation measures that workplaces have adopted and will
continue to consider.
So, Ms. Luther, will you describe how Columbia Sportswear
handles employee requests for pandemic-related accommodations?
Ms. Luther. Absolutely. Thank you, Chair Adams. So,
Columbia Sportswear, of course, considers accommodations for
vaccines. We have not fully implemented a mandate at this
point, so we are still working through that process, and
frankly, would very much appreciate guidance, particularly as
it relates to religious exemptions.
As I'm sure you are aware some of the states have begun to
mandate the vaccines. There are some people who are claiming
religious exemptions that may not quite qualify, and so
companies would very much appreciate further guidance in how to
think through that. But as we consider accommodations, we would
be looking at various alternatives, depending on the nature of
the role, from testing to remote work.
As you may know, we have people who are in very different
types of roles in the company, so depending on job role we
would consider whether it would be appropriate to have remote-
type work. But again, testing, masking, those kinds of
activities, in a limited way, could be used for accommodations.
Chairwoman Adams. Thank you. So, based on your personal
knowledge and experiences, how have employees responded to the
safety protocol and vaccination requirements at Columbia?
Ms. Luther. Absolutely very well, for the most part. If
you're talking about the accommodations--such as physical
barriers, physical distancing, masking. Overall, we've had very
good luck, with the exception that, in some parts of the
country, there are resistance, and I'd say in different
geographic locations where vaccines are not as accepted,
particular those retail employees have been somewhat at risk
where we've had mask mandates.
And our concern has been, in terms of engagement with
customers, there's been some resistance.
Chairwoman Adams. OK ma'am. I want to move on to another
question but thank you very much. So, Professor Shapiro, will
you elaborate on the definition of ``grave danger'' and how
COVID-19 could be considered a grave danger?
Mr. Shapiro. Yes. The courts are seeking to distinguish
workplace hazards that cause relatively minor problems, (such
as skin irritation, for example), from those that are deadly,
usually defined as the worker can be at risk of dying or of a
very serious illness, such as being hospitalized with COVID or
long-term COVID.
Chairwoman Adams. OK. Well thank you. Professor, it's
always good to welcome and to see witnesses from North
Carolina. Thank you, again.
Mr. Shapiro. You're welcome.
Chairwoman Adams. What prongs of the Occupational Safety
and Health Act must OSHA prove to justify the issuance of an
ETS?
Mr. Shapiro. It must prove both that a risk to workers
during the six--month interim period before there's a permanent
standard is grave, and that it is necessary. So, we've heard
the suggestion that this is not OSHA's business because
vaccines are a public health concern, and that's true enough,
but OSHA was charged in 1971 to protect workers from disease in
the workplace and has been in the health protection business
since 1971.
Chairwoman Adams. Oh, OK. Great. Well thank you very much.
I'm going to--I did want to know though why the issuance of an
ETS is needed now, If you can give us that by 22 minutes, why
is it needed now, in comparison to the issuance of the ETSs
before?
Mr. Shapiro. We know now two things: not as many people
have become vaccinated as we would have wished earlier in the
year, and the Delta variation has caused a pandemic again in
the United States, and there's the risk of additional pandemics
down the line from additional variations in the next?
Chairwoman Adams. Thank you so much. I am out of time, and
I'm going to yield now to Mr. Keller. You're recognized,
Ranking Member Keller, for your questions, five minutes.
Mr. Keller. Thank you. Mr. Hecker in September President
Biden's Chief of Staff Ron Klain retweeted a comment stating
that OSHA doing this vax mandate is an emergency workplace
safety rule is the ultimate work around of the Federal
Government to require vaccination.
This was an admission that the administration is attempting
to circumvent the rule of law by stretching OSHA's limited
authority under the Occupational and Safety Health Act to enact
a sweeping public health edict. Furthermore, President Biden
demanded back in September that OSHA issue this ETS quickly and
provided specific guidance on what it should include.
Is this highly improper approach consistent with proper
OSHA emergency temporary standards or rulemaking in general?
Mr. Hecker. Thank you, Ranking Member Keller. I would say
again section 6(c) of the OSH Act refers to an ETS that is
necessary to address a grave danger. The Secretary is
designated to make that determination, not the President, in
the statute, and presumably he's handed that to his
Occupational and Health Administration.
So that's what OSHA needs to determine. OSHA needs to
determine there is a grave danger, and they need to show that
it's necessary, that an ETS is necessary, to address that
danger in the workplace. And so, I would say, you know, it's
for OSHA and the court to determine whether they've met that
standard, but I think, based on the written and oral testimony
given today, I think there are a number of hurdles that the
administration needs to clear to meet that threshold, that
statutory requirement.
Mr. Keller. I would agree with that, and I would say that,
you know, our businesses, our employers, our families, friends,
and neighbors that run these businesses, did a good job of
keeping their employees safe throughout the pandemic before
vaccine mandate, when they took the precautions necessary to
keep people from spreading the virus in their workplaces.
Do you think that the White House edicts will impact the
final ETS? Is it vulnerable to legal challenge?
Mr. Hecker. For the same reasons, it's certainly vulnerable
to legal challenge, and OSHA will need to address, I think,
some of the directives that came directly from the President
rather than the Secretary, or from the Occupational Safety and
Health Administration. For example, you know, OSHA has certain
regs, or requirements and rules, that address the number of
employees impacted for application, but here, the 100-employee
threshold didn't seem to be a considered determination by the
administration--by 'the agency' I should say--but, rather, you
know, passed down from President's Bidens action plan on
December 9.
So, I think a lot of employers are concerned, and
presumably employees as well, whether there will be an exact
impact. We don't know exactly how it's going to be calculated
and, you know, exactly who may be covered, depending on how
that determination is made. Again, that came top-down rather
than from considered, you know, discourse internally at OSHA.
Mr. Keller. OK. I appreciate that. Also Mr. Hecker, in
October COVID-19 case rates dramatically decreased in the
United States as the summer surge from the Delta variant
peaked, and more and more of Americans have acquired immunity
from the virus through infection and vaccination.
Further, employers around the country have already
implemented robust policies, as I mentioned before, and
protocols based on evolving CDC and OSHA guidance to protect
their workers. Given these facts, do you believe that the
American workers are presently in grave danger in the
workplace?
Mr. Hecker. You know, that's a determination, again, for
OSHA to make about whether they believe they can meet that
standard. But what I would say is with the administration sort
of trumpeting its successes, its partnerships with employers to
put in these other risk mitigation protocols that you've
mentioned, I believe that sort of undermines the necessity for
when we are seeing President Biden on October 14th put in a
number of statistics in the remarks, he made showing decline in
hospitalization rates, in cases, and that's across a number of
states, a majority of states.
So, it's hard to say that as planned, the current plan, the
pre-ETS plan is working, and still show a necessity for an ETS
when your other risk mitigation protocols, your national
emphasis program on COVID-19, your other regulations, can be
used to cite employers related to COVID.
If you're claiming they're working, how does that mean you
need an ETS as well?
Mr. Keller. I appreciate that, and I would just hope that
Columbia Sportswear is making sure that their employees that
make their products around the globe, that they're fighting in
those nations, too, to make sure their workers are protected.
Thank you, and I yield back.
Chairwoman Adams. Thank you. I recognize Chair Bonamici
five minutes.
Chairwoman Bonamici. Thank you, Chair Adams, and to all the
witnesses. And I think I want to start with a reminder that
more than 700,000 people in the United States have died during
this pandemic, and the recent surge that we saw, an
overwhelming majority of people who are hospitalized are
unvaccinated. So, Ms. Luther, thank you again for being here.
Oregon, as we know, has an exceptional outdoor recreation
industry. It's responsible for hundreds of thousands of jobs,
and billions in revenue, and it's a critically important
industry.
And Columbia Sportswear has a globally recognized brand
that operates as a nationwide employer. You said you have
stores in 90 locations, and some states have, as you mentioned,
implemented prohibitions on private employers instituting
vaccine requirements. So how has that affected your efforts to
promote vaccinations in your workplace?
Ms. Luther. Thank you, Chair Bonamici. It's a pleasure to
see you, and it absolutely has made it more complicated. When
you think about a national company, and trying to be efficient
with your operations, and a complex footprint across the United
States, the, the inefficiencies of having to address different
circumstances for different employees and different locations
is quite burdensome.
And when you think about travel between locations, having
some who are vaccinated, some who are not vaccinated, it
definitely complicates our ability to communicate clearly with
our employees and keep our employees safe. Unfortunately, just
a few weeks back we did lose our first employee in this effort.
Chairwoman Bonamici. I'm sorry to hear that, and to
followup on that, Columbia Sportswear is currently navigating
conflicting State and local regulations, so how would a uniform
national OSHA vaccination standard benefit Columbia and other
companies?
Ms. Luther. It would absolutely be?'we are not medical
professionals, and we don't want to be in the business of
interpreting what would be the best medical way to approach
this pandemic. We need guidance from the Federal Government to
help us keep our employees safe.
Since the beginning of this pandemic, we have taken
extraordinary measures, sometimes well in advance of what local
authorities were prepared to provide guidance for, so we've
been eager to do everything we can to keep our employees safe.,
But we are not in the business of interpreting pandemic best
practices, and that's where we really need the Federal
Government to step in and provide that guidance for us.
Chairwoman Bonamici. I appreciate that. Did you want to
take just a moment to respond to Mr. Keller's comment about
Columbia around the globe?
Ms. Luther. Absolutely. We have done extraordinary things
to get our employees vaccinated, in fact, working to get oxygen
supplies in India when they were in short supply. We have been
cooperating with local authorities to help and partner with
factories in Vietnam to ensures ? so, we have been working with
partners around the world to do whatever we can. Obviously, we
don't control supply of vaccine, but where our employees have
been stranded in India, or in other places, we have gone the
extra mile to ensure we've extended catastrophic medical care
to employees in other countries to ensure that they had access
to the highest quality of medical care. So absolutely, we are
committed to that across the world.
Chairwoman Bonamici. Thank you. And thank you so much, Ms.
Luther. Professor Dorfman, under Title VII of the Civil Rights
Act, what are an employer's legal obligations when it receives
numerous, potentially hundreds of requests for religious-based
exemptions to a vaccination requirement, and how does that
volume of employees? requests for exemptions affect the
workplace?
We're seeing this already in the district I represent, for
example, where a large number of employees are saying, 'We're
religious, they don't, 'we can't get vaccinated,? so how is
that handled under Title VII?
Mr. Dorfman. Thank you for this question. So, an employer
can consider such a situation under the undue hardship on the
employer. At a certain point, reviewing the large number of
requests for accommodations can be really detrimental to the
way we run our businesses, not to mention, you know, giving all
those accommodations to many employees would actually make it
much harder for the employer to run its business.
In those circumstances, employers would not be under any
legal obligation to grant those requests.
Chairwoman Bonamici. And do you know, Professor Dorfman, of
any religion that prohibits vaccination?
Mr. Dorfman. I personally do not know of any religion that
prohibits vaccination, per se.
Chairwoman Bonamici. Thank you so much. And thanks again to
all our witnesses, and I yield back the balance of my time.
Chairwoman Adams. Thank you, Chair Bonamici. I'm going to
yield now to Ranking Member Fulcher.
Mr. Fulcher. Thank you so much, Madam Chair, and I
appreciate the candor of Ms. Luther, just by identifying the
cumbersome nature of what this will employ on our workforce.
So, I have a question for Mr. Hecker, and this has to do with
just the realistic impact that an ETS would really have.
So, Mr. Hecker you stated that a recent survey from Society
of Human Resource Management found a whopping 90 percent of
employers believe it will be somewhat or very challenging to
implement the OSHA ETS, and 89 percent believe they will lose
workers as a result of that.
And so, just from a realistic standpoint here, what are you
hearing about the potential impact of this ETS on workforce and
the ability to retain that workforce?
Mr. Hecker. Thank you, Ranking Member Fulcher. Yes, from
client counseling, we know it's already a tight labor market,
and people are having difficulty retaining or onboarding staff,
and I can look at my social media feeds and see people reaching
out, saying, 'If you know anyone, I'm looking.?
You know, I had a client conversation recently where the
client said, 'You know, I'm not joking' this may sound like I'm
joking' but I cannot lose one person. I have over 300 openings,
and I can't fill them. So, if I lose a person, it's going to
have real impacts on my operations.? And I think, you know,
we'll see things like that. There was just a discussion on the
combinations.
I think most employers are taking those seriously and
looking at going through the individual interactive process. I
think it's hard to dismiss a batch of accommodations out of
hand, so that process, standing that up, will be quite
difficult if you're not used to the volume.
Some smaller businesses in the 100 to 500 number range of
employees, they may not have the H.R. support or the legal
department or the compliance department, to stand this up
quickly, and they need time. You know, OSHA determined not to
take stakeholder input here, in this emergency temporary
standard process, and typically, under the APA, Administrative
Procedure Act, you would have notice of comment rulemaking that
would account for stakeholder input, and we would have a better
idea, Ranking Member Fulcher, about what really concerns
employers on the ground, and OSHA would be able to consider
that.
They didn't do that here. In the OIRA stakeholder
meetings--I think there have been more than 70--unfortunately
we fly blind in those. Nobody has the text of this ETS yet, at
least in the regulated community. You know OSHA has it, OIRA
has it, but beyond that we don't know what's in it, so it's
really hard to determine, you know, what testing allocation--
the cost of testing allocation will be, what the paid time off
requirements will be.
Mr. Fulcher. Right, right.
Mr. Hecker. Just don't know, and those are all the
practical impacts on employers.
Mr. Fulcher. Thank you, Mr. Hecker. I've got just a couple
minutes left, and I have a couple more questions here. This one
in regard to test costs: there's likely going to be a provision
for testing here. And there are valid concerns that
implementation of the ETS would overwhelm some of that testing
capacity. Have you heard anything from employers about the
availability and the cost of testing kits, and what would the
impact of this be, and the average costs of these tests, and
who picks up the bill for it?
Mr. Hecker. Yes. Anecdotally, Ranking Member Fulcher, I
have heard some concern about the availability of testing and
the costs. I had a client suggest that it was going to be in
the hundreds of thousands of dollars for them if it's allocated
to the employers. Again, we don't know. Typically, throughout
the pandemic I think costs have tended to be allocated to the
employers, rather than employees.
So, you know, even if there may be some justification for
shifting that here, I don't know that anyone is optimistic on
the employer side that's going to happen. But yes, it's,
another question we don't know is, there's time to reach full
vaccination. In the meantime, while people are getting--those
who choose to be vaccinated, while they're getting vaccinated--
well, they need to undergo weekly testing as well until they've
reached that full vaccination.
So, you may have to roll out a testing program even if the
vast majority of your employees choose to be vaccinated. I
think that's something that we haven't heard much from OSHA on,
and you know, personally I'm curious about whether those who
choose to become vaccinated will need to test in the meantime.
We know that those who choose the testing option will be
subject to it weekly at least, and there will be real costs,
and we could stretch the supply chain even further.
Particularly, we also don't know what kind of tests will be
accepted under the reg if it will be rapid, or something more.
Mr. Fulcher. OK, thank you, Mr. Hecker. Madam Chair I yield
back.
Chairwoman Adams. Thank you very much. I want to recognize
now the Chair of Education and Labor, Mr. Scott. You are
recognized for five minutes sir.
Mr. Scott. Thank you, Madam Chair. Madam Chair, I ask
unanimous consent to place in the record a statement from
Professor Douglas Laycock.
Chairwoman Adams. So ordered.
Mr. Scott. Madam Chair, you've indicated pride in North
Carolina, in Virginia, Dr. Laycock, Professor Laycock, is one
of the foremost religious liberty law scholars in the Nation.
He's at the University of Virginia Law School, and he states in
his statement, ``I am about a strong a supporter of religious
exemptions of burdensome regulations as you could find in legal
academia. If the law or regulation requires an American to
violate his or her own conscious, I believe the government
should grant that person an exemption unless some truly
compelling government interest requires that an exemption be
denied. But some government interests are really, really are
compelling, and every Constitutional right is subject to
occasion limits or exceptions.'' He goes on to cite Supreme
Court cases, which show the precedents of the Supreme Court
which have rejected many challenges to vaccine mandates.
Professor Dorfman, you've had a couple questions on the
religious exemption. Can the employee take into account the
impact accommodations might have on customers, coworkers, and
others?
Mr. Dorfman. Yes. So, when we are considering what is the
cost? When we are considering the cost and we have Supreme
Court telling us that more than a di minimis cost would create
a situation where an employer does not need to accommodate a
religious employee, we take into account also the harm to third
parties. We also take into account the ability to conduct the
business.
Mr. Scott. Thank you. And when you deal with the religious
exemption, we know that many of this vaccine hesitancy is not
religious, it's actually political. How do you deal with that,
particularly in light of the fact that there's been with many
of them expressed no opposition to vaccines to children who
routinely get vaccinated to attend public school? How do you
deal with that?
Mr. Dorfman. So, an employer has the authority to conduct a
limited inquiry, which needs to be respectful of the religious
employee, but it also needs to be individualized through an
interactive process. But in that individualized inquiry, there
is, in order tease out religious beliefs, a way to do that is
looking at consistency of the claims.
For example, if employee actually allows for certain
vaccination, and not others, that's inconsistent. For example,
if another employee is objecting to a vaccine because of the
use of fetal cell lines in its development, we would look at
whether that employee has actually taken other medications that
have been using that type of methodology in its development.
If it does, it's inconsistent, and it indicates that it's
not sincere religious belief.
Mr. Scott. Thank you. Professor Shapiro, a question was
raised about whether the ETS, which does limit input, can you
tell me how long a normal OSHA regulation takes to implement?
Mr. Shapiro. On average, complicated regulations like this
one can take anywhere from 3 years to 7 years.
Mr. Scott. So, if this was not an ETS it would be
worthless?
Mr. Shapiro. It may well be.
Mr. Scott. government, OSHA, has the responsibility to show
that there's grave danger. How can that be done if you have 100
employee cutoff? How can you show this danger over 100, but not
under 100?
Mr. Shapiro. OSHA is always making judgments about residual
risk, and the fact is you can't eliminate all risk in all
workplaces. So it has to do its best to protect workers,
realizing that there are situations where it's not going to be
able to regulate, and it's done that with various kinds of
rules, including setting the level of protection, determining
which workplaces it will work best in, and, at some point, it
has to say this is the best we can do, and let's get on with
it, because this is going to protect most workers most of the
time.
Mr. Scott. Is there precedence for a size of employee size
cutoff like this?
Mr. Shapiro. Yes. In fact, Congress and Appropriation
writers regularly exempt small businesses from OSHA regulation.
Mr. Scott. Thank you. I yield back.
Chairwoman Adams. Thank you, Mr. Chairman. Representative
Miller-Meeks, you are now recognized for five minutes.
Ms. Miller-Meeks. Thank you so much. And I find it
interesting that we're having a hearing about vaccine mandates,
and we're not talking about immunity. So, you can achieve
immunity through two different pathways. One is infection
acquired immunity, which is very well-known, very well
recognized and accepted, but rarely talked about when it comes
into context of COVID-19.
And you can achieve immunity through vaccinations. And
throughout the discussion this morning, what I've not heard is
any acknowledgement or addressing that there can be infection-
acquired immunity from COVID-19, and therefore we should be
talking about immunity as a whole.
In addition to which, as I recall in the American Rescue
Recovery Act, or the COVID-19 bill, that was passed earlier
this year, there was 47.8 billion that was appropriated for
testing for COVID-19, and I think, when we're talking about
small businesses, how small businesses can get through this if
there's a vaccine mandate, that I'd like to see some of that
money utilized for small businesses to be able to conduct
testing on their employees.
Mr. Hecker the Biden administration officials have claimed
that employers not in compliance with the forthcoming OSHA
emergency temporary standard mandate could receive fines up to
$14,000.00 per violation. However, the budget reconciliation
bill approved by the Democrats on this Committee includes
massive penalty increases for violations of the Occupational
and Safety Health Act, which would give the Department of Labor
the authority to assess fines as high as $700,000.00 for
certain violations.
How would the threat of substantial penalties under current
law impact businesses struggling to comply with the rushed and
burdensome ETS?
Mr. Hecker. Yes. Representative Miller-Meeks, I appreciate
your question. The increased penalties that were passed, if
you're a small business, particularly, $700,000.00 violation,
could be, you know, threatening to your business, could put you
out of business, with the company litigation to challenge it.
You know, I anticipate that we'll see a lot of press around
violations under the ETS to pass legal muster and go into
effect, because, you know, OSHA is just--it's not a large
agency, and it's going to look for other deterrence mechanisms.
Former Assistant Secretary for OSHA, David Michaels, who
served under the Obama administration, tweeted back in October
2020, just about a year ago, almost to the day, that one OSHA
press release is worth about 210 inspections on the deterrence
and enforcement front.
So, I think you can expect that kind of approach here. When
OSHA issues a citation, it will issue that press release, and
these large numbers will look splashy. What they won't do is
withdraw that press release or correct it, if those violations
that were issued are modified, or, you know, overturned, or
withdrawn, by OSHA or by a Court.
So, you know despite the company litigation to challenge a
violation that is, you know, one, willful, two wilfulls, gets
you a million and a half dollars. That will be difficult, I
think, and it costs money to hire someone to battle for you,
someone like my law firm.
But I would like to say to, Ms. Luther, we're happy to
counsel Columbia in any and all aspects here, including
accommodations. That's what we've been doing throughout, is to
navigate the complexities and the fractured response to the
pandemic that I don't think this ETS will actually fix that
issue and provide the uniformity that employers are looking
for.
Ms. Miller-Meeks. Yes and Mr. Hecker thank you for that.
Like you, I have been double vaccinated, fully vaccinated, as
has my husband, as have my children. I have administered
vaccines in all 24 of the counties in my congressional
District. I've talked people and persuaded people to become
vaccinated, but I also respect their desire and willingness to
be vaccinated.
And it seems to me that when we do not recognize infection-
acquired immunity, which does provide immunity--the studies
that have come out of Israel and other studies have shown that
it is as beneficial as vaccination, and in some cases maybe
more beneficial, because it's not only to the spike protein--
that we're not addressing that, and we could have the same
accommodations for individuals in the workplace as we have had
throughout the pandemic, knowing that most infections occur at
home or elsewhere outside the workplace. So, I think that it's
a very burdensome regulation. The testing requirements on small
businesses will put some of these small businesses out of
business which is the last thing we want to do in a struggling
economy, so thank you very much, I yield back my time.
Chairwoman Adams. Thank you. Representative Leger
Fernandez, you're now recognized for five minutes.
Ms. Leger Fernandez. Thank you so very much. Thank you so
much for holding this hearing. I wanted to followup a bit with
regards to Professor Shapiro. Can you expand a little bit more
on the impact that refusing to follow mandates has, and the
impact that a lot of politicization of refusing to follow
mandates, would have on the willingness of those to uptake on
those mandates?
Mr. Shapiro. Two things in response. First, as Ms. Luther
has pointed out, the best way to address this and get rid of
the crazy quilt of various requirements, the risk that workers
will go here and there because of vaccine mandates, is to have
a national mandate. Now, of course, to have a national mandate,
it has to be enforced, and OSHA does have and reserve financial
penalties, if necessary, to bring employers into compliance.
As a matter of convenience and expedition, OSHA almost
always settles those cases for pennies on the dollar if you
agree to come into compliance. OSHA's view has long-been our
job is not to raise money for the national treasury, our job is
to get people to come into compliance. If companies come into
compliance, there won't be any significant fines.
Ms. Leger Fernandez. Thank you very much, Professor
Shapiro. Professor Dorfman, I want to raise an issue that is
important for many, as well as myself. I have an
immunocompromised individual in my household. We got all
vaccinated as soon as we could; we've done the test to
determine the antibodies because we are very worried about his
health.
And we're worried when we go out as to whether everybody's
vaccinated now, right? There's a desire to take care of each
other, and when you live with an immunocompromised individual,
it is simply heightened. Professor Dorfman, do you believe
employers have a duty to protect immunocompromised employees in
the workplace from COVID-19, especially when there is going to
be a higher likelihood of unvaccinated coworkers spreading
COVID?
Mr. Dorfman. If you look at the history of the Americans
with Disabilities Act, one of its main goals was to have people
with disabilities be part of the labor market and be inserted
safely into the labor market. The CDCCDC estimates that 83
percent of people under the age of 65 who died of COVID had an
underlying medical condition that is considered a disability.
In the context of which there is an employer who has many
people with disabilities or immunocompromised, in their
workplace, they have the duty and the responsibility of
protecting them against COVID-19, and the complications that
might amount from that.
Ms. Leger Fernandez. Thank you, very much Professor and I
yield back, Madam Chair.
Chairwoman Adams. Thank you very much. Representative
Owens, you are now recognized for five minutes.
Mr. Owens. Thank you. One second. OK, thank you. Thank you,
Madam Chair. Like many others that I've heard from constituents
and stakeholders about their concerns regarding OSHA's
forthcoming emergency standard, temporary standard. An
overwhelming majority of small businesses I have heard from in
my Districts are struggling to retain employees.
Where the vast majority of businesses, small businesses,
are currently struggling to hire new employees, a majority of
them also believe that a vaccine mandate will negatively impact
their business.
Finally, virtually none of them believe that the Federal
Government has the authority to dictate the policies of private
business. Mr. Hecker, in your testimony earlier, you mentioned
that OSHA would have benefited greatly from considering
comprehensive input from the stakeholders.
What is the importance of stakeholder and public input
through the public notice and comment of the OSHA rulemaking
process, and what type of information is typically collected by
OSHA before publishing major rules?
Mr. Hecker. Thank you, Representative Owens. As I believe I
noted previously, a noticed comment, you're going to hear from
stakeholders, interested stakeholders on both sides. And OSHA
hasn't done that here. It can take into account the
practicalities the employers, employees, worker
representatives, whatever interested stakeholder wants to weigh
in and comment, OSHA will review that.
I've been part of that process. I worked for the
Occupational Safety and Health Division of the Solicitor's
Office in the Department of Labor. We've looked at those
comments. We took them seriously. We responded to them in the
rules, in the rulemaking and that's important.
Here, we're hearing from Ms. Luther at Columbia about all
the things they have done. I think a lot of employers take
affirmative actions to address this, and some of them including
vaccine mandates. It's just a question here, as I've noted, I
think there are concerns legally on whether OSHA is able to
meet the statutory standard that this ETS is necessary to
address a grave danger in the workplace.
We heard concerns about going out and the need for national
mandates to level the playing field, but OSHA is a workplace
safety agency. It's the Occupational Safety and Health
Administration, so there will still be unvaccinated people and
risks outside the workplace. This is a public health concern,
and 'it's hard, I believe, to tie exposure to COVID as a public
health concern specifically to the workplace.
We heard mention about noise standards, and the blood-borne
pathogen standard. You will understand that those exposures to
noise, or to, you know, blood or other potentially infectious
materials, happened at work. There's an occurrence that leads
to that exposure. Here, it's not the same where, this is
everywhere. We know this is everywhere, it's a public health
concern, so to have it fall to OSHA, I think, is difficult.
Mr. Owens. OK thank you. I want to ask another question,
Mr. Hecker. The Cargo Airline Association, a trade group for
the air cargo companies like UPS and FedEx, is warning that the
administration's compliance with the Federal contract vaccine
mandate will create havoc in the supply chain during the
busiest time of the year.
Do you anticipate a similar situation once the OSHA ETS is
issued? And is the Biden administration rushing the issuance of
the national vaccine mandates put out, adequately reviewing the
impact it would have on our economy during the Christmas season
and beyond?
Mr. Hecker. Yes. I think there's certainly impacts here, in
an already stretched workforce, and supply chains. We talked
about being able to fill positions if you have folks who are
hesitant, or you know push back on the mandate, that could
cause workforce disruptions, operational disruptions. People
may not be able to find replacements. We have a lot of
temporary folks who come in the holiday season to support
retail in particular, and I think it might be difficult to find
those people and onboard them if they're subject to mandate.
So, there could be disruptions there. You mentioned the
Federal contractor mandate, and I'll say that the rollout
there, the Council when it issued its deviation clause to be
incorporated in contracts and to cover government contractors
with the safety requirements of the safer Federal workforce
task force guidance that was issued on September 24th, they
sort of disseminated the responsibility to individual agencies.
So, each agency has its own deviation, its own
incorporation process, so you're not actually dealing with
uniformity. You're dealing with different agencies, different
clauses, different Department of Defense regulations, and we'll
see the same thing here. There's a conflict, at least in the
testing option, between being proposed, what we expect to be in
the OSHA ETS, and the Federal Contactor Executive Order 14042.
There is no testing option under EEO. So Federal
contractors could be covered by both the ETS and the mandate
and could get pushback there. The OSHA ETS and the Federal
contractor mandate further demonstrates just sort of the
patchwork and will certainly see litigation pushing back on the
OSHA ETS.
We have states who have their own State plans who may or
may not fall in line promptly. OSHA recently warned three
states over the healthcare ETS.
Chairwoman Adams. If we could?
Mr. Owens. Thank you. Thank you very much Mr. Hecker. I
yield back my time.
Chairwoman Adams. Thank you. Representative Jayapal, you're
recognized now for five minutes, ma'am.
Ms. Jayapal. Thank you, Chair Adams, and thank you all for
coming to testify before us. I did want to make a point in
response to some of my colleagues on the other side talking
about why workers aren't coming back to work. One of the
reasons is because they don't feel safe.
I mean, they literally don't feel safe, and they don't want
to put their families at risk. But I want to start by just
saying that recently, I was unfortunately in the hospital with
my husband, and the person who was drawing his blood told him
that she had only just gotten her vaccine that morning.
And the reason she got her vaccine was because the hospital
required, had a policy, that people who work in the hospital
have to get the vaccine. And I just want to say how important I
think it is that we have these requirements and policies to
keep the employees safe, and also, obviously in healthcare, to
keep people like my husband safe, so that he is sure that, and
other patients are sure that, the people that are treating the
patients are actually vaccinated themselves.
You know when she told me that I was actually horrified,
first for my loved one, but I also thought about the nurse, who
told me that she was afraid to hug her children for fear of
infecting them. Her employer's policy ensures that of the many
hazards posed by their jobs, coworkers aren't one of them.
This nurse's story is so common among frontline workers who
are terrified of bringing the virus home to family. Ms. Luther
would you agree that some workers welcome vaccine requirements
for the protect that it affords them and their families?
Ms. Luther. Absolutely. In fact, a case in point: we have a
pilot group coming back into our office to learn from their
hybrid experience, and as a part of that pilot we have a
mandate in place for vaccination. So, those people who are
participating, but because we also have other people that are
in the office that aren't part of this pilot, six people out of
about just a little under 100 dropped out, some of which, most
of which, was entirely around not having the assurance that
they could be in an environment that was completely vaccinated.
Ms. Jayapal. That's exactly right. That's what I'm hearing
as well. Though hardline anti-vaccination activists are the
voices that often get showcased in media reports about
unvaccinated Americans: about 11 percent are merely vaccine
hesitant. They're open to the idea of getting vaccinated, or
they would do so if required. In fact, that's the position that
the phlebotomist, the person that was drawing blood from my
husband was in. She agreed to do it because it was required.
So, Ms. Luther as Chief Human Resources Officer, what kinds of
education and outreach will Columbia Sportswear conduct to
address the concerns of the hesitant and to build their trust?
Ms. Luther. We've been in constant communication with our
employees with over 34 discreet email communications, about 10
different styles of posters for our retail and distribution. We
have hosted webinars with medical professionals that allows for
them to learn medically, as well as the vaccine clinics
themselves.
We have to balance and make sure we're not over
communicating, but we plan also to visit onsite; in fact the
CEO and I are currently planning some onsite visits to some of
the more vaccine hesitant communities, so that we can get a
firsthand account of what are the barriers.
And we have been surveying our employees to get a little
color and understand what percentage of our employees continue
to be hesitant.
Ms. Jayapal. Thank you. You know, the truth is that vaccine
requirements work. My home State of Washington is actually
proof of that effectiveness. On October 18th, when our
Governor, Governor Inslee's vaccine policy for State employees
went into effect, the vaccination rates of State employees rose
to 92 percent, and that is why I welcome the Biden
administration's emergency temporary standards on vaccinations.
It is truly a crucial step to get everyone across the finish
line of this pandemic, and to protect people everywhere--in
workplaces, in hospitals--and ultimately to get workers to feel
comfortable that they will come back to work, and they will be
safe because everyone will be vaccinated. So, with that, Madam
Chair, I yield back. Thank you.
Chairwoman Adams. Thank you. Now I'm going to yield to
Representative Good you are recognized for five minutes.
Mr. Good. Thank you, Madam Chair. It's incredible where we
find ourselves as a nation as our most basic of freedoms are
truly under assault by our own government. Our Constitution
limits the powers that Federal Government in particular and
serves to protect the minority from the tyranny of the
majority.
The first ten amendments to the Constitution were written
to protect citizens from the Federal Government. That includes
the First Amendment which protects our freedom of religion.
We've certainly seen that under assault in the past year. Our
Fourth Amendment prohibiting unreasonable searches and
seizures. Our Fifth Amendment requiring due process. The Ninth
Amendment says the enumeration that Congress--excuse me, the
Constitution of certain rights shall not be construed to deny
or disparage others retained by the people.
The Tenth Amendment says the powers not delegated to the
United States by the Constitution, nor prohibited to it by the
states, are reserved to the states respectively or the people.
And yet, we have experienced great threats and restrictions on
our most basic freedoms. Our freedom of assembly, who we can be
with, our freedom of worship and religion, whether or not we
can hold or attend church services, and under what conditions.
Or who gets to decide, we've already heard it said this
morning, who gets to decide if someone is religious enough for
an exemption? Freedom of speech and expression, what we can say
about the risk of the vaccine, the effectiveness of certain
medicines, the efficacy of natural immunity, the origins of the
China virus and much more.
Freedom of movement, whether or not we can travel, and
under what conditions. Freedom to earn a living, whether or not
we can go to work, keep our job, open, or operate our business,
and freedom of our own person, our own bodies, whether or not
we can keep our own health information private, obtain the
medicine of our choice, decide for ourselves whether or not to
receive a vaccine that we may not want or we may not need.
Our own government, with the help of their allies and big
media, big tech, academic and entertainment, is controlling the
narrative so that only the approved science, the approved
medicine, the approved message is permitted. We're not being
told the whole truth about the risk of the consequences of the
China virus, the risk of the vaccine, or the efficacy of
natural immunity.
This President said during his campaign that he would not
try to enforce a vaccine mandate. And then earlier this year he
acknowledged that he had no Constitutional authority to do so,
because you know that's true, because of separation of powers
and legislative branch's responsibility to make laws, but this
is not regulated interstate commerce. We're forcing it upon
businesses that don't even do business outside their own State.
It is forcing businesses to do what the Federal Government
doesn't have power to do in and of itself. And yet we find
ourselves firing hardworking Americans, including heroic law
enforcement, first responders, and frontline healthcare
workers, inexcusably diminishing our ability to respond to
emergencies, treat the sick from the China virus, or other
health issues, and to protect Americans. Not to mention, we're
depleting our workforce, hurting already struggling businesses,
and further disrupting supply chains.
This, as reports are that positive cases to the degree that
asymptomatic positive cases matter anyway, they are greatly
declining across the country. Our only real question cannot be
answered by these panelists but would be instead directed at
the President of this administration: how we can continue, let
alone possibly, justify this terrible violation of our
Constitutional oaths, and is trampling on the freedoms and
welfares of the American people.
That said, I'll direct one question to Mr. Hecker. Mr.
Hecker this disaster of a reconciliation spending package that
the majority of Congress are trying to ram through right now
with no Republican support, would raise the maximum fine for a
violation of this proposed vaccine mandate tenfold to $700,000.
It's not hard to imagine that a Biden administration who
weaponizes agencies against American citizens would use this
brutal coercion tool to target businesses it doesn't agree
with, much like the Obama-Biden administration did with the IRS
toward conservative groups.
Mr. Hecker, do you have any thoughts regarding why this
threshold on the OSHA regulations being raised so
astronomically to the $700,000.00 penalty?
Mr. Hecker. Unfortunately, Member Good, I'm not privy to
that information. We spoke earlier about how it could impact
businesses, and I don't really have any additional insights on
that.
Mr. Good. Well, it's $70,000.00 now, and they're looking to
raise it to $700,000.00 to try to force businesses, punish
businesses, for operating their business and not harassing and
violating the rights of their employees. With that, I will
yield back Madam Chair.
Chairwoman Adams. Thank you very much. Representative
Norcross, you are now recognized for five minutes, sir.
Mr. Norcross. Thank you, Madam Chairman, and certainly for
holding this hearing on literally an issue of life and death to
the people we represent, and certainly, you know, I couldn't
agree more with my colleague who talked about freedom for our
bodies, except it seems when it comes to women. But we'll have
to hold another hearing on that one.
What I would like to ask is a question for Professor
Shapiro. I recently heard from an employer in my district who
was over 100 people, so we're good there, but he is extremely
concerned on the validity of what is being submitted to him in
terms of proof of vaccine.
You know, many of us have these COVID vaccine cards, but
apparently, they're readily available from the internet, that
you can falsely put down whatever you want. How can an
employer--what steps can he take to prove that the information
being given to him is actually true? Is there anything within
the framework of the law now, or what we're looking at from
OSHA, that will allow them to validate that, what he is being
told or showed is actually true?
Mr. Shapiro. Thank you. That is just one of a host of
details. Of course, you're correct, that are going to be
involved in the implementation of this rule, and that's true of
most rules. There's just a lot of details to work out. States
have records of who is vaccinated and who is not, and as this
rolls forward, as America adjusts, we are inventive, we can
figure out ways to do this.
We can give people access to accurate information. And OSHA
is going to take this into account. It needs good faith
compliance by employers, that's what it expects of them, and if
it turns out false vaccine cards are a problem, it's something
that can be addressed.
Mr. Norcross. So right now, we really don't have a
mechanism to go after it, and an example I'll bring up is to
work in a nuclear powerhouse, you have to go through a series
of background checks. I would assume as part of that the
vaccine proof will be one of those. Is there anything that is
available to--if something is falsely submitted, knowingly
falsely submitted, that would cut into a criminal side of
providing that?
Mr. Shapiro. I don't know of any existing regulation at the
moment that penalizes employees or other people for falsely
presenting their vaccine status, but I don't know of all the
possible laws that could come into play here.
Mr. Norcross. We have a way to go there. So, thank you. Mr.
Dorfman, a question which is a little bit of a twist. You
talked about in your testimony that a disability would be one
of those issues that could prevent you from having the vaccine.
Disability is pretty wide open what that is. How can an
employer verify that the disability you're referring to
actually does have a contradiction to having a vaccine?
How does somebody go about saying that, or how do they
prove that?
Mr. Dorfman. An employer can request an employee for
medical documentation from a healthcare provider. This is done
in the directed process for determining what reasonable
accommodations under the circumstances should be.
Mr. Norcross. So, a doctor would have to say this
disability, in fact, is a reason not to have the vaccine? You
would have to tie those two together, just not that you have a
disability, that there's a contradiction. Is that correct?
Mr. Dorfman. That's correct.
Mr. Norcross. Thank you. Madam Chairwoman, I yield back,
thank you.
Chairwoman Adams. Thank you very much. Ranking Member Foxx,
you're recognized now for five minutes ma'am.
Ms. Foxx. Thank you, Madam Chair. Mr. Hecker, it's been
widely reported that the forthcoming emergency temporary
standard was demanded by the White House, without the input of
OSHA experts, and that the agency has struggled to write a rule
that could withstand legal scrutiny.
The ETS will likely claim that all employees of companies
with over 100 employees, regardless of industry, are in grave
danger in every workplace from COVID-19. What impact and the
wide range of an arbitrary scope of the ETS as dictated to OSHA
by the White House have on whether Courts ultimately deem it
lawful?
Madam Chair there is somebody pounding in the background,
and it's going to make it difficult to hear.
Chairwoman Adams. Oh, please make sure that you are muted.
OK. Thank you.
Mr. Hecker. Thank you, Ranking Member Foxx. I do think we
have an issue here where OSHA has a statutory standard that
they need to issue an ETS. They need to demonstrate it's
necessary to address the grave danger, and how OSHA would do
that here with the administration suggesting their previous ETS
efforts are working, and numbers are going down, how they'll
tie it to workplace specifically. How they'll support decisions
like the 100-employee threshold. We don't have a science. We
don't have the data that OSHA has relied on underlying its
requirements here, whatever they may be, because we haven't
seen them yet, but you know typically when OSHA is going to
undertake a massive rulemaking like this, with broad
implications, you would have the science beforehand, and we
would know what we're relying on.
Here, you know, some of these determinations have been made
ahead of time without the consideration of the experts at the
Occupational Safety Health Administration, and they were sort
of dictated as part of the September 9, COVID action plan from
President Biden.
So, we're yet to see how these will look, but we're setting
ourselves up for difficulties in implementation/compliance and
complexities in the various jurisdictions that will be
responsible for handling this rule, interpreting it, and
implementing it.
Ms. Foxx. Well, let me followup on that. If OSHA can
stretch the authority delegated to it by Congress to issue
what's clearly a public health edict without adhering to the
important requirements and protections of noticing comment
rulemaking, including accepting formal comments from effected
stakeholders before the rule goes into effect, what precedent
would this set for future OSHA regulation? And Madame Chair,
I'm sorry, there is still a very bad noise in the background.
Mr. Vasser: If I may Madam Chair, and Ranking Member Dr.
Foxx, Mr. Hecker, if possible, I believe that whooshing sound
is coming from the slight delay on audio from the speakers to
your mic. If you could be a little more exacting in muting your
mic as soon as you finish speaking Mr. Hecker, and then
unmuting exactly when you intend to talk sir, I would greatly
appreciate it. Thank you, Mr. Hecker.
Mr. Hecker. I will do my best. Ranking Member Foxx, I
apologize. We could see if OSHA begins to use the emergency
temporary standard avenue as a regular part of its tool kit, we
could see degradation of the standard statutory requirement to
demonstrate a great danger that the ETS is necessary to
address.
This was, you know, this was a threshold set by Congress,
and it's meant to be used rarely. We've seen in 10 times in
history, but twice in the last 4 months or so. So, you know, we
need to follow the framework, the statutory framework. Congress
set a high bar and using this more frequently could degrade
that standard.
Ms. Foxx. On Friday, Mr. Hecker, CDC Director Rochelle
Walensky, stated that the United States may change its
definition of fully vaccinated against COVID-19 as more
Americans become eligible to receive booster shots. Mr. Hecker,
could the ever-changing guidance from the CDC, especially
regarding vaccinations, create a conflict with the OSHA ETS, or
cause confusion and liability for employers?
Mr. Hecker. Yes, Ranking Member Fox, it certainly could
cause confusion. I believe we've seen this before when sister
agencies haven't necessarily been on the same page throughout
with COVID guidance, and requirements. I believe it was May
13th when CDC updated its masking guidance to say that fully
vaccinated individuals did not need to mask anymore.
We've since rolled that back a little bit, but OSHA took
some time to interpret the CDC's guidance and decide whether it
was going to apply it to the workplace, so you had the Center
for Disease Control saying one thing, and the Occupational
Safety and Health Administration needing to evaluate it because
they had not apparently coordinated.
I'll say, in the context of the Safer Federal Workforce
Task Force, OSHA does not have a seat at that table, which I
think is very interesting given that it's about the workforce,
the Federal workforce. Why DOL and OSHA were excluded there and
aren't allowed to work the Federal contractor mandate and the
ETS, where we're going to see more confusion to your point,
that seems like a shortcoming.
Ms. Foxx. Madam Chair, even though I lost some time, I'm
going to yield back, thank you.
Chairwoman Adams. OK. I was going to give you an additional
30 seconds if you want it.
Ms. Foxx. All right. Thank you. I will take it then.
Looking ahead to the Christmas season, Mr. Hecker, could you
say a little bit more about the impacts that the vaccine and
testing mandates are going to have on employers, workers, and
consumers in light of the current workforce shortage and supply
chain crisis?
Mr. Hecker. Yes. I think there's going to be a ramp up
time. Of course, if this passes, legal muster goes into effect,
there's going to be a lot that employers are going to have to
stand up. There's a lot for employees to do to comply, and it's
not something you snap your fingers and everyone's vaccinated.
Obviously, the Moderna vaccine, if you take that the two doses,
are you know about 5 weeks or so apart, a month apart, and then
you need 2 weeks on top.
So, you're talking about six or seven weeks to get fully
vaccinated, and that's if you go and get your shot the first
day the vaccine, or the mandate goes into effect. So, there
will certainly be an impact there, and employers could have
difficulty finding vaccinated employees to hire when the market
is already stretched very thinly.
Ms. Foxx. Thank you very much. Thank you, Madam Chair.
Chairwoman Adams. Thank you. Representative Hayes, you are
now recognized for five minutes.
Mrs. Hayes. Thank you, Madam Chair. I move to strike the
last word. In Connecticut, 78 percent of residents have
received at least one dose of a COVID-19 vaccination, and 70
percent of our residents are fully vaccinated. Even with strong
and growing vaccination rates we still have a responsibility to
protect the health and safety of all people who have been
gravely impacted by this virus.
That is why Connecticut instituted a vaccine requirement
for State employees, which has resulted in a 95 percent
compliance rate. Unfortunately, vaccine non-compliance is still
a reality in our State. Yesterday, the Governor's office
reported that they have taken action against 121 State
employees for vaccine non-compliance. In addition to State
employees, at least 200 healthcare workers in my State have
also faced termination for failure to comply with vaccine
mandates.
While religious concerns regarding the COVID 19 vaccine
have been widely reported, faith leaders have been working to
ensure their congregants are protected from this virus. In
fact, many faith leaders and leaders of faith-based
organizations have indicated that they will not endorse
requests for religious exemptions from vaccinations.
Madam Chair, I ask unanimous consent to insert into the
record several articles stressing support of the faith
community for vaccinations.
Chairwoman Adams. So ordered.
Mrs. Hayes. My question today is for Professor Dorfman.
Does the law allow for employees to filter out objections that
are submitted as religious, which prove to not be based on
religion?
Mr. Dorfman. Yes. The employer as I said would have a
limited inquiry as to the sincerity of the religious belief
that is requested, that is attested for, and in situations
where those are not found to be sincere, again, through a very
respectful interactive process between the employer and the
employee, if those were not found sincere, those can be thrown
out.
Mrs. Hayes. Thank you, Professor Dorfman. It's imperative
that we continue to debunk misinformation surrounding the
vaccine. What I will say also is that one of the hardest things
throughout this pandemic for me, as a woman of faith, is to not
be able to worship in person. So, I am deeply, deeply
sympathetic to these concerns. However, I also recognize that I
can't find a religion that has any specific concern about
vaccinations, so this is--it's important to get good
information out there.
And direct outreach is critical in mitigating vaccine
hesitancy and preventing COVID-19 fatalities. Dr. Dorfman
again, what is your assessment of how employers under civil
rights law can approach employees who have these objections?
And must those employers consider the threat of COVID-19, as
they determine what may constitute an undue hardship for
employees?
Mr. Dorfman. Yes. So as I said the Supreme Court in TWA vs.
Hardison said that anything more than a di minimis cost to the
employer is going to be considered an undue hardship, and it
would allow the employer not to accommodate the religious
employee.
When we're talking about costs, we are talking about the
risks to other employees of getting COVID-19. We're also
talking about the ability of the employer to conduct their
business properly, so in those situations and when there is a
request for a religious accommodation, if there is more than a
di minimis cost to the employer, they can refuse to accommodate
and request to not get the vaccine.
Mrs. Hayes. So, what if an employer agrees to provide a
reasonable accommodation for an employee's religious objection,
and what is the employer legally required to do under Title
VII?
Mr. Dorfman. So, in those situations, the employer and the
employee would be for interactive process and will discuss what
would be the reasonable accommodation under the circumstances.
Those could be for example, working remotely. It can be for
example, to be reassigned to another position where the person
is not coming into contact with many people, right? It can be a
revised schedule.
All of those are possible accommodations as long as they do
not pose an undue hardship on the employer.
Mrs. Hayes. Well thank you Professor Dorfman for your time
today, and for your thoughtful responses to all of these
questions. Madam Chair, with that I yield back.
Chairwoman Adams. Thank you. Representative Spartz you are
now recognized for five minutes.
Mrs. Spartz. Thank you, Madam Chair. I appreciate this
hearing. I actually had town halls this weekend, and I know
that we're talking about legal concept here and have questions
for that, but we need to understand we're dealing with people's
lives, and I had a lot of constituents crying to me that the
policemen, nurses, business owners, they're going to lose
employees, they're going to lose jobs, and they're very, very
concerned.
And I understand, you know, if Ms. Walker wants to, the
employment at will, or whatever they want to do, she can
terminate all of them, that's a choice she makes. But I have a
quick question for some of the legal scholars we have, and I
can start with Mr. Hecker. Do you believe that Federal
Government mandated for you to lose your private job for
refusing the vaccine can bring some issues, how Constitutional
it is?
Mr. Hecker. Yes. Representative Spartz, I can speak to the
standard that's required for OSHA, and that's to demonstrate
that this is a grave danger where the ETS is necessary. I think
they're going to have trouble meeting that standard. I think,
as you've said, private employers, and as I testified
previously, private employers have taken a number of mitigation
efforts, instituted a number of COVID risk mitigation
protocols, including in certain circumstances, vaccine
mandates.
And, you know, I'm here speaking sort of more to the ETS
standard, and I think there are issues that OSHA has there: how
we'll need to, how private employers will need to address their
workforces if there is noncompliance. I don't think we know
yet. We haven't seen the ETS.
But there could be issues not only with the ETS, but also
in the way that conflicts for trying to dovetail with the
Federal contractor mandate, and folks will have to deal with
how they're going to deal with their Federal contractor
workforce as well.
Mrs. Spartz. I think there are some issues there, but also
for President Biden to issue such a broad vaccine mandate on
his own authority versus via the legislative branch, and also
for OSHA to do the rules, really, it's a misrepresentation of
his rules, and we actually dealt with it with eviction
moratoriums where you know the rules talk about the laws,
especially as they deal with toxic substances.
Now we're talking about viruses. So, if my colleagues want
so much to mandate, wouldn't it make more sense more for
legislative branch to act, and actually for Congress to pass
this legislation, if you believe it's so important, versus you
know, give such a broad authority to be challenged. What do you
think, Mr. Hecker?
Mr. Hecker. The statute does grant authority to the
Occupational Safety and Health Administration to issue
emergency temporary standards under certain defined
circumstances, so OSHA will need to demonstrate that there's a
grave danger, and that this ETS is necessary.
Mrs. Spartz. But my question is for you. Are you saying
that if my colleagues want so badly to have this mandate, they
should go through the legislative branch and then charge and
they can pass this mandate, would that clear a lot of
Constitutional authority challenges potentially that doesn't
need for qualification. Do you think it would be a bad choice
if you know if this Committee believes that it needs to be
mandated?
Mr. Hecker. Representative Spartz, I don't think that's my
determination to make. I think that's a question better
directed to your Democratic colleagues. I'm speaking to the
ETS, and I think I elucidated why I think there's some issues,
and some hurdles, that the ETS will have in going into effect
or passing/meeting legal authority.
Mrs. Spartz. OK. And I believe maybe Mr. Dorfman if you
have a second, and Mr. Shapiro, since you're a legal professor.
Do you believe it would be bad and less potential challenges if
we dealt with this issue on the legislative versus an executive
branch level?
Mr. Dorfman. So, I'm not a Constitutional law scholar. I'm
here to talk about the civil rights mandates, and civil right
requirements.
Mrs. Spartz. OK. What about Mr. Shapiro. Do you have any
thoughts from that? We'll try to this last lawyer on this
panel.
Mr. Shapiro. Thank you. Congress has acted, it enacted the
OSH Act. I believe and have argued OSHA has the legal authority
to have an ETS. Mr. Hecker and I disagree about that. There's
no doubt as to Congress's Constitutional authority to create
the OSH Act, and the issue here is not a Constitutional one,
it's whether or not OSHA has the legal authority to have such
an ETS.
Mrs. Spartz. Right. And I think that is an issue that
Congress wants to clarify, they could clarify this legal
authority, is that correct, specifically you know to challenge
on that issue. If they believe that a certain point, and we can
talk about how Constitutional it is to do it a little
different, but do you think believe it would be better?
Mr. Shapiro. Well, I think we're going to find out whether
OSHA has this authority because as Mr. Hecker predicted, there
will be lawsuits.
Mrs. Spartz. OK, OK, well, I yield back. Thank you.
Chairwoman Adams. Thank you. Representative Omar, you are
now recognized for five minutes, ma'am.
Ms. Omar. Thank you, Chairwoman. It has taken OSHA far too
long to move past the voluntary guide, fact sheets, and
significant finds. Instead, take strong action to protect our
most vulnerable workers. While the initial ETA was a good first
step, its scope was too narrowly limited to healthcare related
settings.
That is why I am relieved the administration is now taking
additional steps to protect more frontline and essential
workers with a broader ETS. However, OSHA must still learn from
its slow and inadequate action during the COVID crisis, not
only as it works to craft this new ETS, but also as the agency
looks to enact other related workplace safety rules in the
future.
Whether it is another public health pandemic, or a climate
change disaster, these safety issues will always be here at the
forefront in the future. Professor Shapiro, what should OSHA be
doing now to be better prepared for the next pandemic, and what
should Congress be doing to assist OSHA in their preventative
work for the future?
Mr. Shapiro. In the Obama administration, OSHA was working
on an infectious disease standard which would have been a
standard that could be used to head off every nature of
pandemic because we don't know what the next pandemic will be.
And once OSHA gets this done, because, right now, I think as
you're suggesting, there is an emergency and we need to do
this, , we should start thinking about how we create a
universal standard, so we can act more expeditiously, more
quickly, and more protectively the next time around.
Ms. Omar. Thank you. Some 40 percent of all workers are
covered under OSHA State plans instead of Federal OSHA. Some
states have had these local plans, such as South Carolina,
Utah, Arizona, have indicated their opposition to the
forthcoming OSHA standard.
There are also the same states that haven't complied to any
part of OSHA's first ETS for healthcare workers or adopted an
equivalent standard. Professor Shapiro if such states refuse to
implement an OSHA ETS, what is OSHA's recourse to ensure the
Federal standard, or at least equivalent standard is enforced
in those states, and what process does OSHA need to follow?
Mr. Shapiro. OSHA does have the authority to take over a
State program if it is failing to protect workers. It's done
that once before regarding North Carolina and the protection of
poultry workers. That's kind of a radical remedy, but it might
be necessary here.
Before we get there however, those states will be subject
to lawsuits by uncovered workers that seek to Court order to
recall mandamus to require those states to obey the law, which
is they have to meet the minimum standards set out by OSHA.
That is a mandatory duty. It's subject to mandamus and
private lawsuits by covered employees will enforce this.
Ms. Omar. Thank you. Madam Chair I yield back.
Chairwoman Adams. Thank you. Representative Stefanik you
are recognized for five minutes.
Ms. Stefanik. Thank you, Madam Chair. In the State of New
York, we have already seen the devastating impacts of Governor
Hochul's vaccine mandate for healthcare workers. We are facing
a healthcare workforce crisis as a result of this
unconstitutional mandate.
In September in my District, Lewis County General Hospital
announced a temporary shutdown of their maternity ward due to a
workforce shortage stemming from the vaccine mandate. This is
robbing a rural community of a vital healthcare service, and
frontline healthcare workers of their ability to provide for
their families.
As a new mom myself, particularly when I think of my
constituents in rural communities, they have to travel that
much further when they deliver their babies. As the Biden
administration attempts to impose their vaccine mandate on
private employers across the country, the Society for Human
Resource Management recently conducted a survey of their member
employers, and 89 percent said some of their workers will
resign due to the new mandate. This of course is as we are
facing a supply chain crisis just in time for the holidays.
My question is for Mr. Hecker. Do you believe that the
Biden vaccine mandate is likely to exacerbate existing
workforce shortages and hamper our Nation's recovery from the
COVID-19 pandemic?
Mr. Hecker. Thank you, Representative Stefanik. I think
that this is one reason that massive undertakings like this
need to be thoughtful and knowledgeable, and not rushed. They
need to take into account the stakeholder comments, and input
of practical impacts here.
I think we've discussed how there's already a workforce
shortage, there's a tight labor market, and it could continue
or be exacerbated by the ETS if folks walk, if there is a great
resignation that. That a lot of my clients, and a lot of
employers fear. I think it was discussed earlier about making
one of the accommodations being remote work, and maybe you
could retain people in that manner.
But I put forth to you that the Federal contractor vaccine
mandate actually requires vaccination of remote workers who
work on or in connection with government contracts. So, it may
be difficult there to fill spots if people have objections.
What's the accommodation at that point?
I don't know that we know, or what the interaction will be,
or exactly how it will contemplate and address remote workers,
but yes, I think we have a number of issues on the labor
supply.
Ms. Stefanik. The remove worker excuse is absurd,
particularly when you're talking about healthcare workers. You
cannot deliver babies remotely, that is just impossible, and
the same goes for our law enforcement and our first responders,
as we're seeing after multiple--, two, years of high crime
numbers in New York City for example, we're now facing a
significant shortage of first responders and law enforcement
officers because of this vaccine mandate.
And I want to ask you a broader question. Do you believe,
and I think we can all agree, that losing a job is generally
detrimental to worker's overall health and well-being?
Mr. Hecker. I think, you know, I'm more here to talk about
the standard, but yes, I mean I think being employed is
certainly a positive thing, at least for me. I enjoy my work,
and it's fulfilling. It gives me opportunities like talking to
you, so I think people, you know, if given the option they want
to pursue gainful employment.
Ms. Stefanik. Well certainly in my district, I represent
hardworking families, I get texts and calls every single day.
People love their jobs. They are dedicated to their jobs, and
they are frustrated, and they are panicked, frankly, that they
are leaving their jobs because of this unconstitutional
mandate.
My last question is about the compliance costs, and the
burdens to employers who will incur the costs of this mandate.
Can you walk through that challenge for our employers?
Mr. Hecker. Yes. I mean it's difficult in one respect to do
that without the text. And we talked about how really, only the
stakeholder input from the White House is Office of Information
and Regulatory Affairs. That's really the only group that's
taking stakeholder input, not OSHA.
So, we don't know exactly what's going to happen here. We
don't know the testing allocation. We can guess at where that
will land, but the weekly testing is going to be very
expensive. As I mentioned earlier, particularly for smaller
businesses, if you don't have a robust HR or compliance or
legal department standing this up and implementing it,
executing the vaccine mandate isn't something that rolls out.
You need to communicate it to your workforce. You need to
message. You need to do all these things to consider exactly
what you need to do when the ETS issues, and how you're
actually going to make it happen again. That's all if it passes
legal muster. We saw that initially you mentioned healthcare,
and obviously the last ETS stroked narrowly into healthcare,
and the draft that went to OIRA, the draft that OSHA initially
worked on, was broader, and presumably OSHA and OIRA and the
administration determined that it couldn't meet the necessary
to address grave danger threshold.
So, it's curious that we're looking at this 4 months later,
and there was no mandate in the healthcare ETS, there was no
vaccine mandate.
Ms. Stefanik. Thank you I yield back.
Chairwoman Adams. Thank you. Representative Stevens you are
now recognized for five minutes ma'am.
Ms. Stevens. Ms. Luther, thank you so much for joining us
today. Certainly, your company Columbia, is not the only
private company in the United States encouraging its workforce
to get vaccinated and welcoming a comprehensive and cohesive
Federal approach.
Certainly, smaller companies who are very eager to fill
open jobs and get people back to work are facing this workforce
shortage, and we hear often--just, the other day I was talking
to a constituent in Northville, Michigan who said, ``Gosh I
wanted to help out my friend's business, but I just don't feel
totally safe yet until we get our vaccine threshold up,''
although Michigan is doing a good job, particularly in
southeastern Michigan.
Also, the small business roundtable recently issued a
statement saying that, 'American business leaders know how
critical vaccination and testing are in defeating the pandemic
and writing that over the past several weeks many companies
have decided to implement a vaccine mandate for some or all of
their employees, a decision we applaud.''
Do you Ms. Luther, do you agree with the sentiment
expressed by the Business Roundtable?
Ms. Luther. I do. And the crisis is very real. The labor
crisis is very real, however that's precisely why we need the
uniformity to level the playing field to allow for us to do the
right thing by our workforce and getting everyone vaccinated to
protect our employees without being vulnerable to having to
have our employees walk down the street to the next retailer to
join that store where they don't face the same requirement,
because that labor shortage, that labor crisis is very real.
Ms. Stevens. And what do you know about other businesses
with whom you work? Do you know if they agree with this
position, your suppliers? Are you getting a sense of general
agreement with the statement that was expressed by the business
roundtable?
Ms. Luther. I do. I regularly participate in CHRO
roundtables where there's a cross-section of industry leaders
brought together to discuss these issues. Frankly, the
pandemic, and having unanswered approaches, really, banding
together is the only way we've gotten through this pandemic is
by sharing best practices, and those conversations regularly
come back to making it a safe environment for employees, and
knowing that the risk is very real in taking action on our own,
but with a level playing field when we're all playing by the
same rules, that would help all of us to have a bit more
courage in taking these very difficult steps knowingly that
there will be people who choose not to continue employment
under those circumstances.
Ms. Stevens. Yes. And any strategies that you've used to
help employees who are partially vaccinated against COVID-19
receive their second dose? Is there any best practices that you
could share around those effective strategies about encouraging
employees to receive the full COVID-19 vaccination?
Ms. Luther. We have adopted a pay-for-vaccine strategy
really directed at our hourly workforce to pay up to 3 hours
for getting that vaccine, in addition to holding two vaccine
clinics that coincided with getting that second shot as well as
an ongoing communication campaign to make sure that they know
when and where they can become vaccinated to make sure that
they have the community resources that they know, so we've been
in constant communication to encourage that full vaccination,
as well as understanding and getting the information from them
on vaccine status, including requiring uploading of that
vaccination card so we knew exactly where our workforce stood.
Ms. Stevens. Well, it's certainly been a unique time to
serve or work as a head of human resources, and it sounds as
you've been writing the playbook as you've been going, but that
dialog with other companies and other stakeholders has
certainly been very beneficial, and I just really want to
applaud you for coming here today and sharing your testimony
and your success story. We're thrilled to receive your playbook
for success, and with that, Madam Chair, I yield back.
Chairwoman Adams. Thank you. Representative McClain, you
are now recognized for five minutes.
Mrs. McClain. Thank you, Madam Chair, and thank you to all
the witnesses today. I too have done several roundtables. I've
talked to several businesses. I've talked to several people,
and this is clear, vaccine mandates is on everyone's mind. But
as it pertains to the businesses, they are very concerned with
the mandates
You had the labor shortages, you have the supply chain
shortages, you also, remember, have the businesses who have
been hardest hit with all of the mandates, especially from our
Governor and our State, with capacity restrictions and what
not. They don't feel at all that the mandates are going to make
it easier for them to hire employees, especially with 11
million jobs still out there to be filled.
So, I think there is a lot of division within the country
right now. I think what the American people are looking for,
quite frankly is a little bit of truth, transparency, and a lot
of consistency which hasn't been there. So, Mr. Hecker I'd like
to start with some facts because I understand everybody's
feelings are important, but we have got to have some facts at
some point in time.
A study founded by the National Science Foundation found
that unvaccinated people who previously had COVID could expect
immunity against reinfection anywhere between 3 months and 5
years. Even a Yale study concluded that antibodies generated
from a natural infection were sufficient to protect against
COVID on average, for at least 16 months.
Now these are facts. These aren't feelings, these aren't
hypothesis. My question is: does it make sense to force
someone, mandate--, and this is a mandate that's not by their
doctor, not by their healthcare professional, takes a look at
no underlying condition. This is a government person mandating
for someone who has had natural vaccines or has natural
immunities--does it make sense to force someone to take a
vaccine when they've already recovered from COVID-19, and has
natural immunity?
Why don't we take that into consideration?
Mr. Hecker: Yes, thank you Representative McClain. I don't
believe OSHA is going to take that into consideration. I
appreciate the studies you cited. I think the CDC is taking a
different position, but I could speak to the fact that I think
in the ETS context OSHA has some hurdles to get over to mandate
the vaccine in the workplace for anyone because they have to
meet their grave danger and ETS needs to be necessary to
address that danger.
So, I'm not speaking to the issue about immunity. I don't
see OSHA necessarily adopting that or taking that into account.
Mrs. McClain. Isn't that the goal we're trying to get, is
to protect people? Now we're forcing people to get a mandate,
and anyway, I appreciate. The other thing is, Mr. Hecker, and
the employers will be tasked with tracking vaccinations, do you
have an idea of what type of recordkeeping will be imposed on
them?
Mr. Hecker. We don't know that yet since we don't have the
text. We can look to Federal contractors, see if the workforce/
task force guidance and see that there were specific documents
that were required, but that guidance seems to suggest you just
need to show it rather than maintain it, at least that's my
read of it.
I don't know that OSHA will do that because, actually, I
think former Assistant Secretary Michaels referred to this as
basically a recordkeeping statute, so I think you can expect a
robust recordkeeping framework in the ETS.
Mrs. McClain. Of which the businesses will pay for. If an
employee suffers an adverse reaction after receiving the
vaccine, will this be considered worker's compensation?
Mr. Hecker. I can't speak to that workers? comp. It's
really a state-by-State system, and I think there may be
different standards in each other's worker's compensations. I'm
not really a worker's comp----
Mrs. McClain. But I'm assuming that question will be
answered before we mandate something right?
Mr. Hecker. Well, this is something that maybe if there was
collaboration and taking into account stakeholder input by
OSHA, they may have addressed it, or been able to consider it.
We'll see how they----
Mrs. McClain. But here's my concern. We are going to
mandate something, and we have no ideas what the rules of the
game are, yet we're going to mandate something. I mean we're in
the middle of baseball season. Can you imagine going up to the
plate and saying eh, I don't know if you get three strikes,
four strikes, seven strikes, two strikes, just go up to the
plate and give it a whirl.
If we're going to mandate something, don't you agree we
should perhaps maybe have some of the bugs worked out prior to
the mandate?
Mr. Hecker. Right. And I think I said earlier, you know, we
should have the data and the science ahead of time. We should
know where we're going with this. Again, the----
Mrs. McClain. That's a little crazy. Having the data and
the science, I mean that's a little crazy.
Chairwoman Adams. Out of time.
Mrs. McClain. Thank you, Madam Chair. I yield back.
Chairwoman Adams. Thank you. Representative Yarmuth, you
are now recognized for five minutes.
Mr. Yarmuth. Thank you, Madam Chair. Thank you to the
witnesses for their responses today and their testimony. I want
to followup on Ms. McClain's and also Dr. Miller-Meeks?
interest in natural immunity, and I'd like to submit for the
record the August 2021 CDCCDC morbidity and mortality weekly
report, which includes a study of COVID-19 infections in my
State of Kentucky among people who were previously infected
with the virus that causes COVID-19. I ask unanimous consent
that be put in the record.
Chairwoman Adams. So ordered.
Mr. Yarmuth. This study concluded that unvaccinated people
were twice as likely to be reinfected with COVID-19 than those
who were fully vaccinated after initially contacting the virus.
So, it seems that, you know, real-life examples indicate pretty
strongly that you are much safer from the, and much more
protected from, the virus if you have been vaccinated, even if
you had it before clearly, obviously if you've not had it.
And this basically shows that the vaccines offer better
protection, and I think we have to consider that. And you know
we still don't know, and, you know, I know Ms. McClain had
mentioned a study that shows protection of up to 16 months, but
these are wide ranges, they're very uncertain, and I think the
question is: do we want to make sure that we have the best
protection for our workers, for the customers, and so forth?
We also don't know how natural immunity affects the
reinfection with the Delta variant, or other variants that may
occur, and again, this study in Kentucky points to the
importance of vaccination, even those who had prior infection.
With that in mind, I'd like to ask Professor Dorfman some
questions about natural immunity, and how an employer would
handle an employee objections to a vaccination based on a
natural immunity argument. Professor, is an employee required
to provide them with the exception to the requirement under the
ADA?
Mr. Dorfman. No. So, it is a reasonable consideration or
recommendation by an employer that a person who already got
COVID could still be a direct threat to the health of other
employees at the workplace, to the health of customers in the
workplace. As you said, science are still unsettled as to
whether a person who has ``natural immunity'', whether that
person can actually still contract or spread COVID-19.
Mr. Yarmuth. Thank you. And is there any requirement under
Federal civil rights laws that compel an employer to provide
accommodations to employees who claim to have natural immunity?
Mr. Dorfman. No, there is not.
Mr. Yarmuth. And I think you raised an important point, and
I've actually gotten in all sorts of arguments over the last
year and a half about: we still are in uncharted territory to a
certain extent. The information accumulates in the data, and
the evidence accumulates, but there's still an awful lot of
unanswered questions about the course of the virus, and what
provides the best protection, and it just seems to me that we
know that vaccines work.
We know that right now I think we know that it is the most
probable and most likely protector of everyone involved at this
point in our State of knowledge. So once again, I thank the
witnesses and I yield back.
Chairwoman Adams. Thank you very much. Representative
Fitzgerald, you're now recognized for five minutes.
Mr. Fitzgerald. Thank you, Madam Chair. Mr. Hecker, in
addition to this Committee, I'm also on the Small Business
Committee, and we have had a steady stream of stories from
small businesses who have just been decimated by the pandemic.
First, you know, they were forced in the shutdowns, and then
they were forced to compete on this system obviously that was
created on the enhanced unemployment benefits.
What I'm most worried about is when the rule is unveiled,
that somehow small business, and you know, it can be anywhere
from two employees obviously, you know what I consider small
business, all the way to 100 employees, that could get caught
up in this.
I'm unaware of any other mandate of this type that could
cause this type of strain, especially on, you know, what we
would refer to as Ma and Pa shops, and ultimately kind of the
heavy hand of, you know, what would be the government and the
OSHA ETS on these size businesses. Can you just comment on
that?
I mean, I think that's critical, is that the size of these
companies affected would have to be taken into account.
Mr. Hecker. Yes, Representative Fitzgerald. So, there is--
we understand that there will be a 100 employee thresholds. We
don't know exactly how that's going to be calculated, or how
it's justified. Even if you're above 100 employees, there may
be circumstances where you still operate as a small business,
and you don't have all the frameworks in place, for example, in
HR, or recruiting or, you know, onboarding or legal or
compliance to address this kind of issue and to figure out
promptly how to deal with it, how to navigate its contours, and
then also how to implement once you're able to determine
exactly what's required of your business.
And if you're on the borderline, if you're 98 employees
right now, well, what if you were 104 in July, are you covered?
You may be. And so, there's some fluidity there, and again we
don't have the text, so it's hard to opine definitively, but
there certainly could be issues for smaller and medium sized
businesses to comply and to navigate the default complexities
of this rule.
Mr. Yarmouth. Yes, Fitzgerald. Yes, and thank you for that.
Let me just followup with you. The guidance from the
administrators say for Federal worker task force, there seems
to be some discussion again about extending the mandate to even
those workers that are working ``remotely,'' and I know that's
taken on many different forms since the pandemic began.
Is there any way for OSHA to measure that, or is there any
way for them to really have any type of data that you know had
already been collected, or requests for future data to be
collected, where they actually could execute this? To me it's
like mind-boggling that if there is somebody working at home,
that suddenly you could have an OSHA rule applying to that
individual.
I've never, I'm not aware of that ever happening in the
history of OSHA, or in the you know the SBA and everything that
they oversee.
Mr. Hecker. Yes. So, our understanding from the September
10 stakeholder call that OSHA put on is that they don't intend
the vaccine mandates to provide under the ETS to fully 100
percent remote workers. However, if you're someone who's going
to come into the office even once, you may fall under, as noted
previously, the Federal contractor vaccine mandate actually,
specifically does apply to remove workers who are working for,
or in connection with the Federal Government covered contract.
So, there's a conflict there between the two mandates
again, adding to the complexity that employers and employees
need to navigate in order to determine their actual compliance
obligations. The task force guidance that you referenced,
Representative Fitzgerald, actually again explicitly says
remote employees are covered, and also says basically OSHA's
ETSs are no safeguard.
If you're complying with those it doesn't matter, you're
subject to the Federal contractor mandate, so there again, the
uniformity that we're looking for, or that may have been
promised from the approach here in the COVID action plan on
September 9th, we're not really seeing it. Not only at the
Federal level, because each agency is going to enforce its own
implementation of the Federal contractor mandate, and we have
State plan stages----
Chairwoman Adams. Time. The gentleman is out of time
Mr. Yarmuth. Thank you, Madam Chair, I yield back.
Chairwoman Adams. Thank you. Representative Bowman, you are
now recognized for five minutes.
Mr. Bowman. Thank you, Madam Chair. Mr. Shapiro in your
written testimony you note that Black, Latinx, and other people
of color are disproportionately represented in many occupations
that make up the lowest paid, highest risk jobs that have been
deemed essential during the pandemic, such as health services,
childcare, public transit, grocery clerks and meat packing.
We also know that our Black and Latinx communities have
faced worst health outcomes over the course of the pandemic.
This can be attributed to multiple compounding reasons,
including systematic racism, inadequate, or zero paid leave to
get the vaccine, no means of transportation to get to the
vaccine site, inadequate access to affordable quality
healthcare, and much more.
How would OSHA's upcoming emergency temporary standard help
us better protect Black and Latinx essential workers and
address racial inequities and workplace health and safety?
Mr. Shapiro. By increasing the likelihood that everyone
they will come into contact with is vaccinated or is
immediately tested, providing a layer of protection that we
simply have not provided to date.
Mr. Bowman. Thank you very much. Ms. Luther, thank you for
joining us today and telling us about your efforts to protect
the health and safety of your workers. I really appreciated
hearing about how much effort your workplace has put into
removing barriers that so many workers face, such as offering
paid leave.
For many workers they simply can't afford to miss work in
order to get vaccinated if it means they won't get paid leave.
People shouldn't have to choose between a lifesaving vaccine
and being able to afford rent or put food on the table. The
U.S. is one of six countries with no national paid leave
policy. Can you tell us why Columbia Sportswear implements a
paid leave, and how did you make this feasible, so your
employees face one less barrier to getting vaccinated? What
kind of impact did paid leave have on your staff?
Ms. Luther. Paid leave played a critical role in keeping
our business afloat and our employees engaged during the
workforce. In addition to paid leave to get the vaccine, we
also introduced a catastrophic leave program that was new to us
that really took into account a variety of impacts that the
employee may experience in relation to the pandemic, whether it
be adverse effects, whether it be child care crisis, whatever,
we gave 2 weeks of paid leave in order to deal with those types
of catastrophic and unexpected events in order to provide that
cushion at a time that was very, very scary for everyone.
So, it played a critical role in keeping our workforce
engaged and keeping our business running.
Mr. Bowman. Thank you very much. Madam Chair, I yield back.
Chairwoman Adams. Thank you. Representative Cawthorn, you
are now recognized, sir, for five minutes.
Mr. Cawthorn. Thank you very much, Madam Chair. There are
20--year veterans of law enforcement agencies turning in their
badge today because they refuse to bow the knee to tyranny.
There are nurses who studied and trained for years, plunging
themselves into debt to fulfill their dream of caring for
others, only now to have the government strip them of their
jobs because a virus that they were themselves committed to
defeating. I barely recognize America anymore, Madam Chairman.
You and your colleagues have sacrificed freedom on the altar of
safety. Forced injections mandated by the Federal Government is
nothing short of subsidized medical apartheid. Something must
be done.
Today I'm introducing a bill to address this tyranny head
on. The Justice for All Businesses Act will stop Joe Biden's
overreach in its tracks. The JAB Act strips the Secretary of
Labor from using funds to enforce a mandate, not a law, a fake
mandate, forcing employees to be vaccinated against COVID-19.
It also prohibits the Federal Government from raining down
fines on businesses for upholding the Constitution and defying
tyrannical edicts. My bill will not be the end of the matter. I
promise to keep working until Washington bureaucrats once again
know who they truly work for.
This is not a matter of health. It's a matter of liberty.
The right to work is innately American. When you strip away
someone's livelihoods you rob them of their freedom. You rip
away their identity, you tarnish their dignity. There are
patriots across this Nation would rather see their jobs ripped
away from them than lose their right to live, liberty and the
pursuit of happiness. I stand with them to defend freedom at
all costs.
Ms. Luther thank you very much for your testimony today. I
had a question for you. What does it say about President Biden
that he has outsourced shutting down this virus to OSHA?
Ms. Luther. I think President Biden is frankly being
courageous in confronting a pandemic that is taking the lives
of over 700,000 people in this country, and trying to level the
playing field for businesses to get ahead of this economic
crisis that we are facing as businesses, whether it be in the
supply chain, keeping us from being able to manufacture our
goods in the countries where we produce our goods, or being
able to come together and bring our employees back together to
really enjoy what collaboration feels like.
And I think he's helping us navigate through a complex
quilt of requirements that are different State by State and
county by county.
Mr. Cawthorn. Well, Ms. Luther, I've heard in your
testimony, we were talking about getting paid leave, people to
get the jab, for people to get the vaccine. And really, I do
not care what you use to incentivize vaccinations within your
own company, that's your prerogative, it's your company, but
frankly, there is an enormous disparity between persuasion and
coercion. It's the difference between liberty and tyranny.
You've proven yourself incapable of persuading your
employees, so now you resorted to oppressing them. You've
turned to the government to break the will of your subordinates
and legitimize your medical intrusion. I believe that this
mandate will literally force Americans to choose between their
livelihoods and a deeply intrusive medical ultimatum.
The fact is you have a widely unpopular policy that you
want to enforce, and you need government overreach to give you
air cover. You've admitted this in your testimony to the
Committee. You called this government mandate a tool in the
fight to run rush onto personal liberty.
You care more about the bottom line than allowing your
employees to make medical decisions for themselves, and I
really believe that you are more worried about your company's
ESG score for your percent of COLM than you are your employees'
individual freedom.
Other members of this Committee may hesitate to call you
out for this, but I will not. Your tactics are disgusting; they
are un-American. In the coming months Americans will be plunged
into financial turmoil because of President Biden's failed
economic policies which have led us to our supply chain
shortages, and our shortage of having a workforce.
And your company will now be complicit in ripping financial
stability away from the families who depend on your survival. I
would also like to thank having Mr. Hecker on and for your
expert testimony. Mr. Hecker, what impact will enforcing the
ETS, a controversial and burdensome national mandate, have on
the public perception of OSHA, and the agency's ability to
implement other workplace safeties?
Mr. Hecker. Yes, thank you Representative Cawthorn. It
could certainly, in one respect, pull resources away from other
workplace safety initiatives, so we'll have broad impacts on
allocation of efforts. And beyond that you know the penalties
could be high, and it could be very difficult to challenge or
cost intensive for especially smaller businesses to challenge
violations under the ETS if it passes with full muster.
It could also you know if folks--I said earlier not to
politicize public health, right?--and so here, if OSHA is seen
as a political tool rather than an occupational safety and
workforce, excuse me, occupational safety, and health
enforcement agency, then it could lead to pushback, or greater
pushback.
Chairwoman Adams. The gentleman's time.
Mr. Cawthorn. Yes ma'am, Madam Speaker, Madam Chair, I
yield back. Mr. Hecker, thank you very much.
Chairwoman Adams. Thank you. Representative Allen, you are
next, but before you do that, I do have to speak on the floor
on a bill that the Committee has, and so Representative Yarmuth
will assume the gavel.
Mr. Yarmuth. Thank you, Madam Chair. I'm not sure who is
next up.
Chairwoman Adams. It's Representative Allen.
Mr. Yarmuth. Representative Allen. You are recognized for
five minutes.
Mr. Allen. Thank you, Mr. Yarmuth, and obviously as we can
tell by this hearing that this has created hysteria throughout
the country. We paid a heavy price for COVID. Early on it was
trying to figure out how to deal with it, and of course, you
know, we ended up shutting the economy down. Supposed to be for
30 days and ended up being 90 days, and it's cost a lot of
treasure and a lot of lives.
And it's been very difficult to deal with. And thank
goodness for the development of the vaccines. I've been
vaccinated, my wife has been vaccinated, and most of my
children have been vaccinated. But again, it seems like we're
getting the cart before the horse, because there are a lot of
unanswered questions here that it sounds like if we could be
fighting for, I don't know, years in court on a lot of these
Constitutional law issues that have been brought up, you know,
the rights, our rights are guaranteed under the Constitution.
Particularly when you have a virus that is absolutely still a
mystery. And when I say a mystery, I mean I know people that
have antibodies that had COVID, and they didn't even know they
had it.
And so, they asked me why should I get a vaccination? And I
said, 'Well you know I'm not going to just tell you to do it? I
said what I think you should do is talk to your doctor. We do
know that both unvaccinated and vaccinated folks do carry the
virus, and can expose others to the virus, and so, like I said,
we're mandating something here in totality that really needs to
be examined individually.
And we've got companies that are doing this--obviously,
Columbia Sportswear doing their thing--and you know as a
company they have a right to you know, they have a right to do
that. I'm not going to say whether I agree with your or not
agree with you.
I'll tell you in my company, we wouldn't dare do something
like that. But Mr. Hecker, I mean it looks like to me, well,
let me just say this too. This economy is trying to come back,
and a lot of that is because the government has thrown a lot of
money into this economy.
And folks have a lot of spendable income. We got a 70
percent consumer-based economy. But you know that isn't
necessarily going to continue, particularly when we have these
disruptions. And you know, my fear is--obviously COVID is a
fear, and loss of life is a fear--but what if we lose the very
engine that runs the country, and that's the economy, over all
this you know this government one size fits all, you know?
And healthcare has been under this threat for, you know
since Obamacare. I mean we're telling people how long they can
stay in a hospital now, we're telling people, 'OK, you know
this is how long you can have rehab, and you know if you're
readmitted?' and, you know, the same folks don't understand is,
you know, there are 7 billion people in the world, we all got
different DNA, and a different thumbprint, and like I said,
this one-size-size fits-all business is a real problem.
So how in the world from a legal standpoint did you advise
the folks on this panel and in this Committee, and then
employees out there, if you've got somebody who has had COVID
and has the antibodies, how can you fire them?
Mr. Hecker. Yes, and that's, as you said, it deals with an
individualized question, and we would certainly--it's hard for
me to speak to that specific circumstance. To your point, I
think we are here, or I am here, speaking about the threshold
for this mandate, and how there's certainly some difficulties
with the, you said, one size fits all approach here,
particularly where stakeholder input is not really taken at
least on now by OSHA.
Then they say they've heard enough before, and things as
you noted are changing, and I think everyone can agree there's
fluidity in the environment. So, you know, private employers
could have addressed that perhaps.
Mr. Allen. Thank you so much and Mr. Yarmuth, I yield back.
Mr. Yarmuth. Thank you, gentleman. I now recognize Mr.
Murphy of North Carolina for five minutes.
Mr. Murphy. Thank you, Mr. Chairman, just I appreciate the
ability to just be on this Subcommittee meeting even though I'm
not on the Committee. I've been a physician now for 30 years I
guess it is, and I'm kind of a medical nerd. I read a lot of
literature. In fact, I think I was one of the first people that
read some of the first articles in Lancet in February 2020
talking about this virus, and I actually picked the phone up,
as a lot of physicians do.
And we asked people smarter than we are in our disciplinary
areas to find out about it and was told about how, for many
folks who are much smarter than I am with this, about how this
was going to wreak havoc across the world, and that has turned
to be the case.
But you know the amazing thing is, again, being a physician
of 30 years, there are a lot of things that go on with this
that bear to my question. I actually would love to ask Mr.
Dorfman a question, because I just looked on your CV, and
you've had a lot of interest in healthcare, and I was wondering
if you could ask me a few questions.
Mr. Dorfman are you aware that when people come into my
office as a physician, and by the way, I'm still a practicing
physician. They sign a permission form for me to treat them.
Are you aware of that?
Mr. Dorfman. Yes.
Mr. Murphy. OK. Good. And you know the role of a physician
is not telling people what to do, it is going through treatment
options and discussing the risks and benefits of a particular
medication, or a certain type of surgery correct?
Mr. Dorfman. Yes.
Mr. Murphy. OK. And so, if I have somebody that has a
tumor, a cancer, or a kidney stone or something, and I make a
recommendation of a treatment regime, they sign a permission
form that they fully understand the risks and benefits of what
we're going to do, and they sign a permission form that gives
me permission to follow that treatment plan correct?
Mr. Dorfman. I would just say this is called informed
consent, right, that every medical professional.
Mr. Murphy. Yes, but you agree with me, correct?
Mr. Dorfman. Yes, I would.
Mr. Murphy. OK. And so, you're aware that legislation was
passed to free drug companies from any liabilities should any
untoward effects occur because of the vaccine, correct?
Mr. Dorfman. I'm sorry I testify on the issues of civil
rights protections. I don't testify on Constitutional issues
or?
Mr. Murphy. I didn't ask you what you testified on. I said
are you aware of that particular type of legislation?
Mr. Dorfman. For this testimony I am not.
Mr. Murphy. OK. All right. Well so then, tell me, since a
vaccine is the medication, and it is a treatment, using, what
we call, I guess you guys call, in legal terms, precedent, how
can the government then come in and say the government takes
authority over a patient, where you have to have this treatment
where heretofore all decisions made about medical treatments
are made between a patient and their doctor, and the patient
gives informed consent?
Mr. Dorfman. As I mentioned I'm not here to talk about the
form consent. I'm here to talk about how the vaccine
requirement dovetails with the civil rights protections.
Mr. Murphy. I didn't ask you that question. I looked at
your CV. I looked at the, you know, the authority that you had,
I just wondered if you could maybe postulate on that question.
Mr. Dorfman. I'm not going to postulate on it because----
Mr. Murphy. OK, all right. So, you just go on ranting. OK.
All right. Fair enough. Let me ask you, Mr. Hecker, then, I
know--I just go back to Mr. Dorfman because I know that would
be an impossible question to answer because the medications and
treatment regimens are decisions made between doctor patient,
not citizen government, but this particular administration
seems to now want to create their own medicines and----
Mr. Dorfman. Well, this is a matter of public health,
right, and it's not a matter of treatment between a physician
and a patient.
Mr. Murphy. No, it's entirely a matter, it's a treatment.
It has side effects. There can be definite deleterious effects
from this, and so it is, definitely, in the purview of doctor
patient relationship. Let me ask Mr. Hecker a quick question.
You know OSHA has come out with these mandates. How well do you
think businesses will be able to come out and adapt to those
things in such a short period of time?
Mr. Hecker. Yes, thank you, Representative, Dr. Murphy. I
think there needs to be a ramp up period. It would have been
helpful for OSHA, and it would have been helpful to have taken
take into account stakeholder input there. As we discussed
earlier, if you decide to get Moderna, you know the day that
ETS goes effective, you'll likely need, what, six or 7 weeks
before you're fully vaccinated under the current definition.
And some smaller businesses you know closer to that 100-
employee threshold may not have robust frameworks in place to
ramp up and execute this kind of requirement. So, I think there
will be difficulties, you know, if the standard, if the
statutory standard is met, and the ETS goes into effect.
Mr. Murphy. All right, well, thank you, Mr. Hecker, it
looks like my time has expired, thank you and I yield back.
Mr. Yarmuth. Thank you, sir. Are there any other members
who have yet to question and who wish to question? Hearing
none, that will conclude our question-and-answer session. I
remind my colleagues that pursuant to Committee practice,
materials for submission for the hearing record must be
submitted to the Committee clerk within 14 days following the
last day of the hearing, so that means by close of business on
November 9, preferably in Microsoft Word format.
The material submitted must address the subject matter of
the hearing. Only a member of the joint Subcommittee, or an
invited witness, may submit materials for inclusion in the
hearing record. Documents are limited to 50 pages each.
Documents longer than 50 pages will be incorporated into the
record via an internet link that you must provide to the
Committee Clerk within the required timeframe.
But please recognize that in the future that link may no
longer work. Pursuant to House rules and regulations, items for
the record should be submitted to the clerk electronically by
email and submissions to [email protected].
Again, I want to thank the witnesses for their participation
today.
Members of the Joint Committee may have some additional
questions for you, and we ask the witnesses to please respond
to those questions in writing. The hearing record will be held
open for 14 days in order to receive those responses. I remind
my colleagues that pursuant to Committee practice, witness
questions for the hearing record must be submitted to the
Majority Committee Staff or Committee Clerk within 7 days.
Questions submitted must address the subject matter of the
hearing. I now recognize the distinguished Ranking Member of
the CRHS Subcommittee Ranking Member Fulcher for a closing
statement.
He's not here. In that case, I now recognize the
distinguished Chair of the CRHS Subcommittee, Chair Bonamici,
for a closing statement. She's here OK.
Chairwoman Bonamici. Yes, I'm here. Thank you. Thank you so
much, Mr. Yarmuth, and thank you to Chair Adams for hosting
this hearing. And thank you to our witnesses for your
testimony. Today we reflected on the continued threat that
COVID-19 Delta variant poses to the American people, and the
importance of vaccines in safeguarding our workers.
As we continue to battle this historical global health
emergency, COVID-19 vaccine requirements are a good and logical
step that will help us turn the page in our fight against the
pandemic. I applaud Columbia Sportswear and other employers
across the country that have made the health and safety of
their employees and communities a priority and have
demonstrated that vaccine requirements are critical to protect
the workers against COVID-19.
And I look forward to working with my colleagues to fulfill
our responsibility during this pandemic, which is saving the
lives of workers, their families, and all of our constituents
across the country. And Mr. Chairman, Mr. Acting Chairman, I
had to leave the hearing for a brief period of time to go speak
on the floor, and it came to my attention that during my
absence there was an accusation made against Ms. Luther and
name calling, calling her perhaps un-American.
I would have objected had I been here at this time, and I
just want to note that our witnesses are here to bring their
expertise. They're dedicating their time and their knowledge,
and if we have differences among each other, we should do that
respectfully without disparaging our witnesses. So, I just
wanted to get that on the record Mr. Yarmuth.
And thank you again and to each and every one of our
witnesses, for your time and expertise, and I now will yield to
Mr. Fulcher if he's here for his closing statement.
Mr. Fulcher. Thank you, Madam Chairman. And to all the
witnesses that have participated today. This has been helpful,
informative, and just want you to know that your time and your
expertise is very much appreciated.
As of today, we have heard that the Biden vaccine mandate
is going to worsen the workforce shortage and the supply chain
crisis at a time when there are 10.4 million job openings in
the country, and we have seen thousands of workers across the
country leaving their jobs due to similar State and Federal
mandates. It's simply wrong that President Biden would move
forward with a nationwide OSHA vaccine and a testing mandate.
The OSHA mandate also fails to consider the substantial
uncertainty, costs, and liability which will be inflicted on
business owners, including small businesses who will be most
impacted by these penalties. For 19 months, business owners
have implemented many proven measures to make the workplace
safer for their employees, based on evolving science,
government guidance, and industry best practices. As I said in
my opening statement, this isn't about building back better.
It's crushing the job creators and American workers under the
heavy hand of government intervention. Thank you again to the
witnesses, and those participating today. Madam Chairman, I
yield back.
Mr. Yarmuth. OK thank you very much. I'm not sure whether I
was Chairing or not still but thank you for your closing
statement. I will now recognize myself for the purpose of
making a closing statement and this is on behalf of Chair
Adams.
I want to thank our witnesses again for sharing their
testimony and expertise today. This hearing reaffirmed that
workplace vaccine requirements are among the best strategies we
have to keep workers safe during the pandemic. We know that
vaccinations save lives, and mitigate the spread of COVID-19,
yet far too many people remain unvaccinated, even while
workplace outbreaks of COVID-19 continue to invade your workers
across the country. As our witnesses made clear, broad
workplace vaccine requirements are the next step we must take
to prevent workers from both contracting and spreading the
deadly virus. I'm grateful we had an opportunity to hear from
employers who are already implementing these workplace policies
on their workers.
These employers demonstrate that it is not only possible to
implement workplace vaccine requirements, but also essential
for ensuring their workers and workplaces are well protected
against COVID-19. As we continue to face one of the worst
workplace safety crises in recent history, we must ensure that
all workers have the workplace safety measures, including
vaccine requirements, that they need to help safely reopen our
economy.
I want to thank our witnesses again and I yield to the
Ranking Member, Mr. Keller, for further remarks.
Mr. Keller. Thank you, Mr. Chairman. I would like to before
I begin my closing remarks ask unanimous consent to enter into
the record a letter from the National Federation of Independent
Business opposing the Biden administration's efforts to direct
OSHA to issue a vaccine and testing emergency testing standard.
Mr. Yarmuth. Without objection, so ordered.
Mr. Keller. Thank you. OSHA's vaccine and testing mandate
will have devastating impacts on an already struggling labor
market, and further contribute to the supply chain crisis.
After hearing from many businesses across Pennsylvania, it is
clear that this mandate will drive even more Americans out of
the workforce, and the harsh fines for violations of the
mandate will almost certainly run some companies out of
business.
Not only is this nationwide OSHA mandate a government
overreach, it also exceeds OSHA's statutory authority. There's
a reason that out of the 10 emergency temporary standards
issued by OSHA in its 60--year history, nearly all that have
been challenged were rejected by Federal Courts.
As we heard today, this forthcoming emergency temporary
standard is completely unnecessary. COVID-19 cases continue to
dramatically decrease in the United States.
Immunity acquired in communities through vaccine and
infection and the policies and protocols implemented by
employers are all contributing to this positive trend. The OSHA
vaccine and testing mandate is the last thing that businesses
and workers need, and it's not the answer to the crisis facing
our Nation.
As I said in my opening statement, we must stand up to this
massive and almost certainly illegal government overreach.
Again, thank you to our witnesses, and I yield back.
Mr. Yarmuth. I thank the gentlemen for his closing
statement. If there's no further business, without objection,
the Joint Subcommittee stands adjourned.
[Additional submissions by Chairman Scott follow:]
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[Additional submission by Mr. Yarmouth follows:]
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[Additional submissions by Ms. Hayes follow:]
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[Additional submissions by Mr. Keller follow:]
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[Additional submission by Ms. Stefanik follows:]
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[Whereupon, at 1:01 p.m., the Subcommittees adjourned.]
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