[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                     
          
-----------------------------------------------------------------------------------                               
                               

                    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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