Supervisors oppose vaccine, testing mandate for employers

Board of Supervisors’ comment letter to OSHA says regulations are contradictory, burdensome and invasive

TULARE COUNTY – Tulare County is opposing potential implementation of the federal rule mandating large employers to require their workers to get vaccinated or submit to weekly testing.

The Tulare County Board of Supervisors approved a comment letter opposing the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) rule which took effect on Nov. 5 but was immediately challenged in court. California is one of 26 States that maintains a “State Plan” approved and monitored by federal OSHA, meaning Cal/OSHA is required to adopt an ETS that is “at least as effective” as the federal one.

The supervisors’ letter opposes the rule affecting employers with at least 100 workers, which would include most school districts, larger cities and county governments because it is contradictory, creates an unnecessary burden on employers and is unnecessarily invasive.

The letter argues that the rationale for the mandate is contradictory because it states the vaccine is the “most effective and efficient workplace control available” on one hand but concedes on the other hand “breakthrough infections do occur and vaccinated individuals can still transmit the virus to others.”

“It is unclear why federal OSHA is requiring all employers to oversee COVID-19 vaccinations if it does not eliminate the threat of COVID-19 in the workplace,” the letter states. “Federal OSHA has also not demonstrated that other preventative measures employers have relied on throughout the pandemic are suddenly ineffective.”

The letter goes on to contend the vaccination and testing requirements are an unjustified burden on employers. According to the letter, the county has already lost a number of employees in difficult-to-fill positions because of requirements in the state public health officer orders released earlier this year. Requiring all employees to be vaccinated absent a religious or medical exemption would result in the county losing additional employees that are not easily replaceable in a tight labor market.

COVID-19 tests are also in short supply, and waiting times for results are becoming increasingly longer. The state has also made no announcement as to what additional resources will be available for COVID-19 testing as the considerable demand for testing continues to increase.

“Throughout the COVID-19 pandemic, Cal/OSHA has only required employers to offer testing to symptomatic employees or employees who were exposed to COVID-19 in the workplace and this should not be changed now,” the letter states.

The letter’s final point is that the record keeping requirements puts employers in a position of violating their own privacy rules when it comes to employee medical records. The federal rule not only requires employers to maintain a list of employees who are vaccinated but also copies of their vaccination cards. Employers would also be required to track employee test results and keep copies of their weekly tests.

“As a result, employers will have to gather a large amount of records in a short amount of time,” the letter states. “These records will contain employees medical information and, therefore, should be limited.”

Chair Amy Shuklian and Supervisor Eddie Valero said they wanted to continue the item until after Cal OSHA had made a decision on if it will adopt something similar to the federal rule as it makes its way through the 5th Circuit Court of Appeals.

“I am hesitant to vote on something now when they are so many changes going on,” Valero said.

Valero made the motion to table the item for a future meeting and Shuklian seconded the motion but it failed on a 2-3 vote. Supervisors Dennis Townsend and Peter Vander Poel said they thought it was a good idea to for the board to comment on the vote because it wouldn’t preclude the county from sending another letter after Cal OSHA adopts a rule. Shuklian cautioned against sending too many letters and diluting the effectiveness of the board’s official comments on the matter.

Supervisor Larry Micari said the time to send a letter was before a decision was made, not after. He said taking a stand early wouldn’t dilute their comments and would be more helpful in advocating for what their constituents want.

“For over 20 years I have been coming to these board meetings and I have seen the board members posturing and stomping their feet and saying what they have a fit about but they never did anything,” Micari said. “This is something we need to take a stand on. This is something that could really negatively impact our county.”

Shuklian showed her frustration with the board’s insistence on opposing a rule that does not yet exist when she quipped, “So, I guess next week we’ll have a letter to OSHA asking them not to require hard hats on construction sites. Maybe?”

Shuklian’s warning was warranted as the Cal OSHA Board delayed its Nov. 18 vote on the employer vaccine and testing requirements until “more information on the U.S. Court of Appeals litigation develops.” On Nov. 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.”

“While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation,” the federal agency stated on its website.

In an interview after the meeting, Shuklian said she does not see the ruling as a mandate because it gives employees several options to vaccinate, get weekly testing or apply for religious exemption.

“I just don’t see this as a mandate,” Shuklian said.

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