Listen to the Experts

By: Mark Webb

The latest iteration of the readoption of the COVID-19 Prevention Emergency Temporary Standard (ETS) from the Occupational Safety and Health Standards Board (OSHSB) is now being reviewed by the Office of Administrative Law (OAL).  “Readoption” is a technical term allowing for an extension of the ETS beyond the first statutory deadline for an emergency regulation. Leaving aside the comedy of errors that was the OSHSB hearing on this matter, there is one issue that deserves attention that got no response from the commentators on this contentious rule making process.

As remains the case, considerable attention is given to what should be in an employer’s injury and illness prevention program (IIPP). Included in the most recent IIPP content requirements will be the following underlined language if OAL approves the readoption:

“Information on the employer’s COVID-19 policies; how to access COVID-19 testing and vaccination; and the fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.”

Certainly, Cal/OSHA, the California Department of Public Health (CDPH), the Centers for Disease Control and Prevention (CDC), Dr. Anthony Fauci, Governor Newsom, and President Biden likely agree with this statement as far as it goes. The CDC, however, also states, “COVID-19 vaccination helps protect people from getting sick or severely ill with COVID-19 and might also help protect people around them.” Might. It would seem if the CDC were to have a California IIPP they might be out of compliance.

CDPH has a one-page document entitled Choosing the COVID-19 Vaccine that’s Right for You. The Department appears to acknowledge that informing the public about vaccinations takes more than one sentence, or in the case of the ETS, a sentence fragment. One-half of this document is devoted to describing the risks associated with vaccinations. The CDPH states all vaccines currently available are proven to be safe and effective at preventing COVID-19. As is the case with the CDC, the CDPH also notes that vaccines “might” also help protect people around them.

The CDC also states that vaccines are safe and effective. They go on to catalogue the various side effects that may come from the vaccine and what to do if there is a serious side effect. The CDC continues to closely monitor the safety of COVID-19 vaccines.

Moderna, the biotechnology company currently manufacturing one of the vaccines authorized by the Food and Drug Administration under an Emergency Use Authorization, offers a Fact Sheet for Recipients and Caregivers regarding their COVID-19 vaccine. It is six pages long. It notes, “The Moderna COVID-19 Vaccine may not protect everyone.”

People, including workers, need to be able to make informed decisions regarding vaccination against COVID-19. This is particularly the case with individuals who may have underlying medical conditions or are otherwise encouraged to consult with a health care professional prior to getting a vaccine.  This is why the CDPH, CDC, Moderna, and almost everyone else providing advice on vaccinations discuss side effects and when to talk to a doctor prior to getting vaccinated.

The need for people to be vaccinated is not limited to the workplace. As such, the information necessary for workers to help decide whether to get vaccinated should be of the same kind and accessibility as is available to the general public. In other words, if CDPH or CDC or the President made the same type of representation regarding vaccines that the Standards Board expects of employers – and that was all they said – there would be a justifiable outcry.

This is not to say that as part of an IIPP employers should not make available information regarding vaccines and many other COVID-19 related issues. Much of this is already required under Labor Code Section 6409.6 added by Assembly Bill 685 (Reyes) last year. What is not needed is a warranty by the employer regarding vaccines that is both inconsistent with and incomplete when compared to what public health agencies are publishing for the benefit of everyone.

But then again, we know the ETS is a work in progress. Perpetually.

Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Mark Webb is a former Arizona insurance regulator, insurance company chief compliance officer, and is an expert in corporate governance, risk and compliance. He is the owner of Prop 23 Advisors.