tv Experts Testify on COVID Vaccine Mandates Accommodations CSPAN November 3, 2021 5:12am-7:59am EDT
the subcommittees are meeting to hear testimony on lives and livelihoods and employee accommodations. this is an entirely remote hearing and as such, all microphones will be cap muted as a general rule to avoid unnecessary background noise and the witnesses will be responsible for unmute in themselves when they are recognized to speak or when they wish to speak -- seek recognition. if a member or witness experiences technical difficulties during the hearing, please stay connected on the platform, make sure you are muted and use your phone to immediately call the committee's i.t. director whose number was provided in advance. should the chair experienced technical difficulty or need to step away, a 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 committees timer which appears in its own thumbnail picture. whenever the witnesses are asked to wrap up promptly when their time has expired. pursuant to rule eight c opening statements are limited to the chair and ranking members. this allows us to hear from our witnesses sooner and to provide all members adequate time to ask questions. i recognize myself or the purpose of making an opening statement. today we are examining the role of workplace vaccine policy and protecting workers against covid-19 and accelerating economic coverage. i want to begin by reiterating a base 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% 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 artists -- communities and workplace. where than 82 million people are not yet vaccinated. our 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. of the largest employers in the country have vaccination permits and more stepping up.
after months of the vaccine being free and available 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 issued an emergency temporary standard that requires employees -- employers to implement vaccination testing policies for their workers. the standard will go a long way toward fulfilling our alternate responsibility during this pandemic which will save lives in the pandemic -- and in the pandemic. i hope my colleagues will agree that workplace vaccination requirements are critical to the safety of our economy and protecting the health of workers, their families and communities. i want to thank our witnesses today. i'm pleased to recognize the distinguished ranking member, mr. keller, for the purpose of making an opening statement.
>> thank you, madam chair. the biden administration has created uncertainty and confusion throughout this politicized covid-19 policy. president biden has resorted to weaponizing the federal bureaucracy, turning employers -- testing employees on behalf of the federal government. osha sweeping and -- an appropriate federal mandate will have devastating consequences. this unprecedented national mandate will put undue burdens on business owners who are already struggling with worker shortage and a supply chain crisis. our job creators should not be expected to assume the responsibility of the private medical decisions of their employees. for manufacturing and energy to retail and hospitality, our team has heard from countless job creators in the pennsylvania 12 district that say this mandate will crush their operation.
we've heard from rural hospitals and correctional officers and where qualified workers are sorely needed even before federal maxime 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 9, president biden ordered osha to enact a broad, sweeping public health package under the guise of workplace safety. since osha was established 50 years ago, only 10 emergency orders have been issued and nearly all of them 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. in the extreme and punitive fines the biden administration threatens to level on any business that refuses to comply shows that it will overthrow any resistance. we must stand up to this massive and almost certainly illegal government overreach. with that i yield back. >> 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. >> thank you for leading this hearing today and the ranking member for joining us for this important topic. and thank you to our witnesses for for -- for providing their
experience and expertise. in 1999 the centers for disease control and prevention identified vaccination as the greatest public health issues in the 20 century. it has eradicated highly infectious diseases around the world and vaccination as part of the program that has played a key role in preventing contagious deadly viral outbreaks. today children in oregon and every other u.s. state and territory 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. the rapid spread of the delta variant of the coronavirus continues to threaten the health and safety of americans and 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 and others with underlying health conditions, the risk associated with covid-19 are potentially even more deadly. even those who are vaccinated face a small possibility of the risk of a serious infection. our priority must be to protect the rights and freedoms of vulnerable individuals to work, to contribute to our economy, not to protect the ability of individuals to endanger others. columbia sportswear is here today representing other employers who recognize that vaccine requirements protect american employees and their communities and the families of their employees. across the country employers know this policy works. today they have the opportunity to discuss vaccine requirements and protect the livelihoods of
all workers, particularly those at higher risk of covid-19. so thank you again to our expert witnesses today and i will turn it over to the ranking member, welcome back. >> thank you so much for that. madam chair, i appreciate this time. madam chair, there is just no way around it. president biden's vaccine mandate is bad for workers, it's bad for business, it's bad for the economy. it is also an affront to the personal liberties that americans hold dear. a major -- major shortages are already contribute into a supply chain backup. in response to state and federal mandates, many private companies have begun firing workers who refuse covid-19 vaccines. this federal vaccine mandate will worsen the supply chain crisis, almost guaranteeing americans will go without needed supplies during the christmas
season. current government mandates have created chaos at airports and we can police forces and our health -- put our health care system in jeopardy. in september, hospital in upstate new york was so understaffed and -- when unvaccinated medical personnel resigned, the hospital was forced to stop delivering babies. these problems will only get worse once president biden's vaccine and mandate is issued. we can afford to lose more workers. this coercive government mandate will compound the crisis facing our nation. instead of empowering american workers and job creators, our friends on the others out of the aisle or forcing nine 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 can also decimate small businesses. this is not building back better. his crushing job creators and american workers under the heavy hand of government intervention. madam chair, i yield back. >> thank you. without objection, all other statement -- those who wish to insert statements into the record may do so electronically by microsoft word by 5:00 p.m. on november 9, 2021. i will now introduce the witnesses. professor sidney shapiro is the fletcher chair in administrative law at wake forest university school of law and the vice president of the center for progressive reform. he has included government service and extensive writing on
occupational safety and health and administrative law, including the 1993 workers at risk, the failed promise of the occupational safety and health administration. scott hecker is senior counsel whose practice area has included the occupational safety and health act, fair labor standards act and other labor employment laws, matters on which he developed expertise from previous government service in the solicitor of labor's office. professor dorfman is an associate professor of law at syracuse university college of law. his interdisciplinary analysis research, he teaches health law, employment discrimination and disability law. i'm pleased to recognize my colleague, chair of the subcommittee on civil rights and human services to briefly
introduce her constituent who is appearing before us today. >> thank you, it's my pleasure to introduce the senior vice president of corporate affairs and chief human resources officer at columbia sportswear which is headquartered in northwest oregon. she is currently responsible for strategies to attract, retain, and motivate employees. previously she served as deputy general counsel for the company and has served as chief governing officer of a natural gas company and has worked in private practice. i want to thank her for spending time with us and providing an important perspective from the business community. i look forward to hearing more about the important work columbia sportswear is doing. i yield back. >> thank you. 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 will 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 the testimony. so i will now recognize first professor sidney shapiro. we will now hear from professor shapiro. we have five minutes. >> thank you. chair adams and bon amici , ranking members and members of the subcommittee, thank you for inviting me to share my views on vaccine standards and employ er accommodations. the court has noted that an emergency temporary standard or ets is, and i'm quoting, an unusual response to exceptional
circumstances. there can be no doubt the covid-19 qualifies as an exceptional circumstance requiring an unusual response. my testimony focuses on four conclusions about osha ets. first osha has the legal authority to issue an e. t. s. requiring vaccines and tests the risk to employees from covid is a grave one. because exposed workers can die of the disease or become seriously ill. the of -- the protection of an ets is necessary because workers are likely to die from workplace exposure during the six months or so period before a permanent standardization. one court indicated that an ets is necessary if at least 80 workers are at risk of dying in the sixth month period. unfortunately, this death toll
is likely if there is no ets. covid is different than the other standards osha has attempted to regulate with an ets. according to the court, osha lacked sufficient evidence that those hazards would put workers immediately at risk, because the evidence it had concerned long-term exposure to a cancer causing substance. my -- by comparisons, workers are at immediate at risk if they are exposed to covid. it is true, the situation is improving, but not everywhere, not for certain and covid, unfortunately it's not going to go away. i would also note that the courts have previously upheld osha standards addressing noise -- noisome 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's 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 at valley forge during the fabled winter of 1777. moreover, 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 i'm quoting here, 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 being deemed necessary by the governing authority of a country essential to the safety and health of the community. thank you again for this opportunity to testify. i look forward to responding to your questions. >> thank you, professor shapiro.
we will now hear from rachelle. you have five minutes. >> think you, chair adams and bonamici, ranking members, members of the subcommittees, thanks for the invitation to testify. my name is rochelle 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 8000 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 shutdown 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 proponent of vaccination. his aunt hildegard 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 a 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 variance. 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's 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 have vaccination mandates. one of the biggest struggles of the last two 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 regulations 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 a testing , 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 is an 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. >> thank you very much. next, we will hear from scott hecker. you have five minutes. >> good morning, chair adams, chair bonamici, ranking members and honorable members of the subcommittee on workforce protections and the subcommittee on civil rights and human services. it is an honor and privilege to participate in the congressional process. my name is scott hecker and i'm vaccinated against covid-19 as is my wife beth we plan to get our children vaccinated. lauren and kate, as soon 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 act statutory requirements. section 60 of the ash act allows
osha to issue temporary emergency temporary standards. under certain defined circumstances. osha must find that one employees are exposed to supposed to a grave danger and an emergency standard is necessary to protect employees from that. covid-19 is a public health concern and osha doesn't have the experience of resources to police the nation's public health. osha must explain why only now covid-19 has become a brave -- grave workplace danger across all sectors and all this. more than 100 employees. four months ago, osha published narrowly focused health care ets that didn't include a vaccine mandate. by pursuing alternative covid-19 enforcement avenues and trumpeting the success of its previous efforts, the biden administration undercuts its own arguments that it's needed. rather than pursuing a one size fits all approach, osha could have revised this covid 19 guidance to allow employers flexibility to promulgate innovative and current safety protocols that best meet the needs of their industries, the remote workforces, their culture and their supply chain and those
have 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 so far has shared its vaccine policy playbook to -- with its clients to assist with just that having to supplement the record with the playbook if that would be helpful. e t s 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. osha has issued to date seven more challenged, resulting in one being fully vacated and another partially vacated in three states. legal challenges will likely be filed shortly after osha publishes its ets by state governments and by private employers. while president biden's covid-19 action plan may have been designed for uniformity, it instead further may complicate employers compliance efforts as they continue to deal with a patchwork of rules and regulations to combat the covid vaccine. if it doesn't survive the legal
challenge, its failure could undermine vaccine efforts. more general, open questions about the continued to concern covered companies, including how the cost of a testing option will be allocated, how long they will have to ensure their employees compliance, what paid time off requirements will look like and under what circumstances remote workers maybe covered and how the 100 employee threshold will be calculated. results from a recent survey showed that quote of organizations that meet the criteria for the biden administration's vaccine or testing requirement. 85% said the anticipated requirement will make retaining workers and employees more difficult 89% that some of their employees will quit due to the new mandate. further quote, 72% of the entities surveyed said the vaccine or testing requirement will make maintaining regular business operations more difficult. we don't yet know what's in the ets or the scientific basis underlying its requirements. the cdc is considering what it means to be fully vaccinated. some groups are eligible for
boozers. -- boosters. if osha's definition of fully vaccinated includes a booster, most of the population isn't authorized to receive one yet. so you have a possibility problem. if osha doesn't include a booster requirement and defining fully vaccinated, we could ask why not? when the cbs -- the cdc 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 six month lifespan? 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 that -- and impediments to implementing it in this avenue lacks legal and practical by -- viability. >> we will finally hear from professor dolphin. professor, you have five minutes. >> thank you for the opportunity to testify before you today. my name is doron dorfman and i'm an associate professor of law at university college of law. my areas of research and teaching,
health law, anti discrimination law and civil rights. therefore, in my testimony, i focus only on civil rights and anti discrimination protections and not unconstitutional questions. the question of 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 employees. i would like to start by state -- by stating this american law, this american work law operates under the well established rule of the employer's prerogative and at will employment meaning that an 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 employees, employers have had the discretion to initiate vaccine requirements on their own. and in fact, 25% 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 a vaccine requirement as an accommodation are a situation in which the employee belongs to a protected group under civil rights laws, and unwillingness to get vaccinated by employees who do not belong to a protected group can result in illegal adverse employment action by the employer. now, i want to give you a very brief overview of the standards and employer needs to legally fulfill to accommodate employees who belong to each one of these three groups. the standards are based on current precedents by the supreme court. religious employees are covered are are covered under title seven of the civil rights act of 1964,
and under title vii, and employer needs to provide reasonable accommodations to employees sincerely holding religious beliefs, as long as those accommodations do not pose an undue hardship on the employer. in 1977, the supreme court in a case called twa versus harbison tells us anything more than at the minimus 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. risk to the health of other employees due to the heightened chance of contracting covid can therefore be considered an undue hardship. other recommendations are available to employers to 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 the pregnancy accommodation mandate as well. employees with disabilities are covered under title one 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 of 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 seven. according to the supreme court in a case called young versus ups from 2015, doctrine on pregnancy accommodations is relational to other accommodated groups at the workplace, meaning that in a situation in which a pregnant employee asked for an exemption from the vaccine, the employer will need to make sure to treat that employee at 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 requirements 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. >> thank you. under committee rule nine a, we will not -- we will now question witnesses under the five minute rule. as this is a joint committee the active chairs and ranking
members, i will recognize subcommittee members based on seniority order on the floor committee. as chair i now recognize myself for five minutes. thank you to my colleague here, chair bonamici and my other colleagues of the subcommittees on workforce protections and civil rights and human services for 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 as they shed further light on mitigation measures that workplaces have adopted and will continue to consider. mr luther, will you describe how columbia sportswear handles employee requests for pandemic related accommodations?
>> absolutely, thank you chair adam. -- chair adam. 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're aware there are 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 and masking, those kinds of activities in a limited way could be used for accommodations. >> so based on your personal knowledge and experience, how have employees responded to the safety and vaccination protocols at columbia? >> absolutely very well. for the most part, if you are 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 would say in in different geographic locations where vaccines are not as accepted, in, particularly 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. >> i want to move onto another question but thank. professor schapiro, will you elaborate on the definition of grave danger and how covid-19 could be considered a grave danger. >> yes. the courts are seeking to distinguish workplace hazards that caused 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. >> okay, well, thank you professor. it's it's always good to welcome and to see witnesses from north carolina. thank you again. what parts of the occupational safety and health acma -- act must osha approved to justify
the issuance of an ets? >> it must prove both the risk to workers during the six-month interim period before there is a permanent standard, that 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 it's been in the health protection business since 1971. >> ok. thank you very much. i'm going to, i did want to note why the issuance of an ets is needed now. so if you could give us, why is it needed now income parents -- in comparison to other ets's before? >> 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 is the risk of additional pandemics down the line from additional variations. >> thank you so much. i am out of time and i'm going to yield now, ranking member keller, you are recognized for your questions. five minutes. >> thank you. mr. hecker, in president biden's september chief of staff ron clain retweeted a comment stating that osha doing this vaccine mandate is an emergency workplace safety rule is the ultimate work around 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
and 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? >> thank you, ranking member cal or. i would say again, section six d of the ash act refers to and ets that is necessary that is necessary to address a grave danger. the secretary is designated to make that determination. not not the president. and in the statute, presumably he's designated that to his contribution all safety and health administration. so that's what osha needs to determine, that it is a grave danger and an ets is necessary to address the danger in the workplace.
so i would say, you know it is for osha to determine whether they 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, the statutory requires. >> i would agree with that and i would say that our businesses, our employers, our families, friends and neighbors that run these businesses did it did a good job 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? >> for the same reasons, it is 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 from the secretary or from the occupational safety and health administration. for example, osha has certain
regs or requirements 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, passed down from president biden's covid action plan on september 9. so i think a lot of employers are concerned and presumably employees as well, whether it -- they will be impacted. we don't know how wood will be calculated, and exactly who may be covered depending on how that determination is made. again, that can be top-down rather than discourse internally at osha. >> 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 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 in 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? i think, you know, that's a determination again for osha to make about whether they believe they can set the standard. what i would say is with the administration sort of trumpeting its success, its partnerships with employers to put in these other risk mitigation protocols as you mentioned, i believe that sort of undermines the necessity when we are seeing president biden on october 14th quoted a number of statistics showing a decline in hospitalization rates, in cases, and that's a number of states, a majority of states. it is hard to say that this
plan, the current plan, the pre-ets plan, is working and still show a necessity for a ets when your other risk mitigation protocols and the national emphasis program on covid 19, your other regulations that can be used site employers related to covid or if you're claiming they're working, how does that mean you need an ets as well? >> 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 are fighting in those nations to make sure their workers are protected. >> thank you. i recognize chair bonamici for five minutes. >> thank you, chair adams and to all the witnesses. 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. ms. luther, thank you again for being here. or a gun as we know has an exceptional outdoor recreation industry is responsible for hundreds of thousands of jobs and billions of revenue. and it's a critically important industry. columbia sportswear as a globally recognized brand that operates as a nationwide employer, you have stores in 90 locations. as you mentioned, some states implemented prohibitions on private employers instituting vaccine requirements. so how has that affected the effort? efforts to promote vaccinations in your workforce? >> thank you, chair bonamici. it's a pleasure to see you. and absolutely it has made it more complicated. when you think about a national company in trying to be efficient with your operations and a complex footprint across the united states, 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. >> i'm sorry to hear that. and just to follow up 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 country -- companies? it would absolutely be assistance. we are not medical professionals and we we don't want to be in the business of 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're 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. >> i appreciate that. did you want to take just a moment to respond to mr. keller's comments about columbia around the globe? >> 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 ensure that 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. >> thank you ms. luther. professor dorfman under title seven of the civil rights act. what are an employer's legal obligations when it receives numerous potentially hundreds of requests, religious-based exemptions, to a vaccination requirement? how does that volume of employee 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 are religious, we can't get vaccinated. how was that handled? >> 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 a 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. >> and do you know professor dorfman of any religion that prohibits vaccination? >> i personally do not know of any religion that prohibits vaccination per se. >> thank you so much, and thanks again to all our witnesses on a -- and i yield back the balance of my time. >> thank you terra on amici. i will yield now to the ranking member. >> thank you, madam chair, and i appreciate the candor of ms. luther, 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% of employers believe it will be somewhat or very challenging to implement the osha ets and 89% 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 the ets on workforce and the ability to retain the workforce? thank you. ranking member of -- ranking member. from from client counseling we know it's already a tight labor market and people are having difficulties retaining or onboarding staff. i can look at my social media
feeds and see people reaching out, saying if you know anyone, i'm looking. i had a client conversation recently where the client said, i'm not joking. it 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 on my operation. and i think we'll see things like that. there was just a discussion of accommodations. i think most employers are taking this seriously and looking at them and 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 it could be quite difficult if you are not used to the volume. some smaller businesses, in the 100-500 number range of employees, they may not have the hr support for the legal department or the compliance
department to stand this up quickly, and they need time. osha determined not to take stakeholder input here in this emergency temporary standard process, and typically under the apa, administrative -- you would have noticed rulemaking that would account for stakeholder input. we would have a better idea about what really concerns employers on the ground and osha would be able to consider that. they didn't do it here. at the stakeholder meetings, i think there have been more than 70. unfortunately, you fly blind in those. nobody has the text of the cts -- the ets yet. we don't know what's in it. it is hard to determine what testing allocation, the cost would be. the paid time off requirements would be. we don't know. those are all practical impact on employers. >> 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 is 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 was the impact -- what with the impact of this fee and the average cost of these tests and who picks up the bill for this? >> anecdotally, ranking member, i have heard some concern about the availability of testing and the cost. i had a client suggest that it was going to be in the hundreds of thousands of dollars for them and it's allocated to employers. again, we don't know. typically throughout the pandemic i think costs have tended to be allocated to employers rather than employees. so, you know, even if there may be some justification for shifting that here, i don't know that anyone's optimistic on the employer side
that that's going to happen. um, but yeah, it's another another question we don't know is there's time to reach full vaccination end in the meantime, while people get vaccinated will get vaccinated, will they need to undergo weekly testing until they reach that full vaccination? you may have to roll up a testing program even if the vast majority of your vaccine, your employees choose to be vaccinated. i think that is something we haven't heard much from osha on. personally i'm curious about whether those who choose to become vaccinated will need to test. in the meantime. we knows -- we know 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 this. whether it will be rapid or something more. >> i yield back. >> thank you very much. i want
to recognize now the chair of of education and labor, mr. scott. you are recognized for five minutes. >> thank you, madam chair. madam chair i ask unanimous consent to place in the record a statement from professor douglas laycock. madam chair, you've indicated pride in north carolina and virginia. professor laycock is one of the foremost religious liberty law scholars in the nation, is at the university of virginia law school and he states in a statement, quote, i am about as strong a supporter of religious exemptions from burdensome regulations as you can find in legal academia. the law of regulation requires an american to violate his or her own conscience. 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 all
compelling. and every constitutional right is subject to occasional limits or exceptions. he goes on to cite supreme court cases which would show the precedent of the supreme court which have rejected many challenges to the vaccine mandates. professor dorfman, you've had a couple of questions on the religious exemption. can the employer taking the -- take into account the impact accommodations might have on customers, coworkers and others? >> yes. so what we are considering, what is the cost, when we are considering the cost, and we have the supreme court telling us that it is more than the minimum cost that would create a situation where an employer does not need to accommodate the religious employee, we take into account also the harms to serve -- to third parties. we also take into account the ability to conduct the business.
>> thank you. and when you deal with the religious exemption, we know that many of these vaccine hesitancy is not religious, it's actually political. how do you deal with that, particularly in light of the fact that there has 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? >> 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 individual's inquiry there is in order to piece 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 is actually taking 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. >> thank you. professor shapiro, this question was raised about whether the ets , which does limit input, can you tell me how long a normal osha regulation takes to implement? >> on average, complicated regulations like this can take one anywhere from three years to seven years. >> so with this was not an ets, it would be worthless? >> it may well be.
>> the government osha has the , responsibility to show that there is great danger. how can that be done if you have the 100 employee cut off? how can you show the danger over 100 but not under 100? >> 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 on 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. >> is there precedent for a size
, employee size cut off like this? >> yes. in fact congress and appropriation writers regularly exempt small businesses from osha regulation. >> thank you. >> you bet. >> thank you mr. chairman. representative meeks, you are recognized for five minutes. >> thank you so much. 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 in the context of covid-19 and you can achieve immunity through vaccination. and throughout the discussion this morning, what i've not heard is any acknowledgment 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 rest -- rescue and recovery act, the covid-19 bill that was passed 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 is 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 per violation. however, the budget reconciliation approved by the democrats on this committee includes increases -- massive penalty increases for violations of the occupational safety and health act, which would give the department of labor the authority to assess fines as
high as $700,000 for certain violations. how would the threat of substantial penalties under current law impact businesses struggling to comply with the rush and burdensome ets? >> yes, representative, i appreciate the question. increased penalties that were passed, if you are a small business it -- particularly, the $700,000 violation could be threatening to your business, could bankrupt your company. i anticipate we will see a lot of press around violations under the ets should it survive legal muster. because osha is just, it's not, it's not a large agency and it's going to look for other deterrence mechanisms. former assistant secretary for moshe, david michaels who served under the obama administration tweeted back in october of 2020 just about a year ago almost to the day that one osha press
release is worth about 210 inspections on the sort of deterrence and enforcement front. so i think you can expect that kind of approach here. um when, when osha issues a citation, it will issue that press release and these large numbers will look flashy. what they won't do is withdraw that press release or correct it if those violations that were issued are modified or overturned or withdrawn. by osha or a court. so you know, it is up to company litigation to a -- to challenge a violation that is you know one willful too willful gets you to a million and half dollars. um that will be difficult i think and it costs money to hire uh someone to battle for you, someone like my law firm. so i would like to say ms luther we're happy to counsel colombia 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 fix, and provide the uniformity employers are looking for. >> thank you for that. like you i have been double vaccinated, fully vaccinated as have my husband and children. i have administered vaccines and -- in all 24 of the counties in my congressional district. i've talked to 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 may be more beneficial because it's not only to the spike protein, that we are not addressing that end we could have the same accommodations for individuals in the work waste as we've 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. >> representative fernandez, you are no recognized for five minutes. >> thank you so very much. thank you so much for for holding this hearing. i wanted to follow up a bit with regards to uh professor schapiro. 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 to uptake on those mandates? >> two things in response. first, as ms. luther 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 the 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. >> thank you very much, professor schapiro. 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 all got vaccinated as soon as we could. we have done the tests to determine the antibodies because we are very worried about his health. we are buried when we go out as to whether everybody is vaccinated or not. there is 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 work workplace from covid 19, especially when there is going to be a higher likelihood of unvaccinated co workers spreading covid?
>> 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 cdc estimates that 83% of people under the age of 65 who died of covid had an under underlying medical condition that is considered a disability in the context of which there is an employer who has many people with disabilities who are immune compromised in their workplace. they have a duty and responsibility to protect them against covid-19 and the complications that might amount from that. >> thank you very much, professor. and i yield back, madam chair. >> thank you very much, representative. representative owens, you are no
recognized for five minutes. >> one second. ok. thank you. thank you, madam chair. like the others, i've heard from constituents and stakeholders about their concerns regarding osha's temporary standard. an overwhelming majority of small businesses in my district are struggling to retain employees. the vast majority of small businesses are currently struggling to hire new employees and the majority of them believe that vaccine mandate would rate -- negatively impact business. none of them believe the federal government has the authority did eight policy to businesses. mr. hecker, your testimony, you mentioned osha would have benefited greater, greatly from considering companies and input
from stakeholders. what is the importance of stakeholder and public input for the osha rule making process and what type of information is typically collected by the ocean -- by osha as i believe i noted you were going to hear from stakeholders, interested stakeholders on both sides. and osha has done that here. it can take into account the practicalities that employers, employees, worker representatives, whatever interested stakeholder wants to weigh-in, osha will review that. i have been part of the process. i worked with the department of labor. we looked at those comments. we took them seriously and responded to them in the rules, the rule making and that is important here. we are hearing from ms. luther at columbia about all the things they have done and i think a lot
of employers have taken affirmative actions to address this, and some of them, including vaccine mandates. it's a question, as i have 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 can -- heard concerns about the need for a national mandate 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 not, it's hard i believe to tie exposure to covid as a public health concern specifically to the workplace. you heard mention about noise standards and the blood borne pathogen standard. you understand that those exposures to noise or to blood or other potentially infectious materials happened at work. there's an occurrence that leads
to that exposure. here, it is not the same where, this is everywhere. we know it is everywhere. it is a public health concern. to have it fall to osha i think is difficult. >> ok. thank you. i'm going to ask another question. the cargo airline association, a trade group for the air cargo companies like ups and fedex is warning that the administration of 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 without adequately reviewing the impact it would have on our economy during the christmas season and beyond? >> 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 push back on the mandate, that that could cause workforce disruptions, operational disruptions. people may not be able to find replacements. we have a lot of temporary folks to come in 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 are subject to the mandate. so there could be disruptions there. you mentioned the federal contractor mandate and i'll say there that the roll out there. the farm council and it issued its far deviation cause to be incorporated and contracts and to cover government contractors with safety requirements of the federal workforce task force guidance issued in september, they sort of disseminated the responsibility to individual agencies so each agency has its own incorporation process. you are not dealing with uniformity, you are dealing with different agencies, different clauses, different department of
defense regulations and we will see the same thing here. there is a conflict in the testing option between what we expect to be in the osha ets and the federal contractor executive order. there is no testing option. 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 demonstrate the patchwork and we will see pushing back. we have states with their own state plans that may or may not fall in line promptly. >> thank you. i yield back my time. >> thank you. representative, you are recognized for five minutes. >> 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 like my husband save so that he is sure and other patients are sure that the people that are treating patients are actually vaccinated themselves.
when she told me that, i was horrified for my loved ones. i also thought about the nurse who told me that she was afraid to touch her children for fear of infecting them. this nurse's story is so common among online workers who are terrified of bringing the virus home to family. would you agree that some workers need -- like vaccinations because of the protection it is their families? >> we have a pilot coming back into our office to learn from their experience. those people who are participating but because we have other people that are in the office that are not part of this pilot, people are at just a little under 100 -- a little
under 100 people dropped out. that was around not having the insurer -- the assurance that they could be in an environment that would be complete vaccinated. >> that is exactly right. that is what i am hearing as well. the hard-line anti-vaccination activists are the ones that often get showcased. about 11% are merely vaccine hesitant. they are open to the idea of getting vaccinated or they would do so if required. that is the position this woman i knew was in. as chief human resources officer, what kind of education outreach will columbia sportswear conduct to address the concerns of the hesitant and to build their trust? >> we have been in constant communication with our employees with over 34 discrete email
communications about 10 different styles for retail and distribution. we have posted webinars with medical professionals that allow them to learn medically as well as the vaccine clinics them selves. we have to make sure we are not over communicating. we do plan to visit on site. the ceo and -- and i are planning to visit some of the more vaccine hesitant communities so we can get a firsthand account of what the berries are. -- the concerns are. >> my home state of washington is proof of that effectiveness. on october 18, when our governor had vaccine policies go into effect, the vaccine rate rose to
92%. that is why i welcome the bided administration emergency temporary standards on vaccination. it is a crucial step to get everyone across the finish line of this pandemic and to protect people everywhere. in workplaces, hospitals and ultimately to get workers to feel comfortable that they will come back to work and they will be saved because everyone will be vaccinated. with that, i go back. >> thank you. now, i will yield. you're recognized for five minutes. >> thank you. it is incredible where we find ourselves as a nation as our most basic freedoms are under assault by our own government. the constitution limits the powers of the federal government in particular and serves to protect the minority from the tyranny of the majority. the first 10 minutes of the constitution were written to protect citizens from the federal government.
they protect freedom of religion. we have seen that under assault in the past year. for having a reasonable searches and seizures, -- prohibiting unreasonable searches and seizures. the tent a minute says -- the 10th amendment -- nine 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 and attend church services and under what conditions. 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 origin of the china virus and much more. freedom of movement. freedom to earn a living, whether we can go to work, keep a job, operate our businesses. whether people can keep their health information private. decide for ourselves whether or not we want to receive a vaccine we may not want or may not need. our own government with their allies in big entertainment are controlling the narrative so only the approved science, the approved medicine, the approved message is permitted. we are not being told the whole truth about the risk or the consequence 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. earlier this year, he acknowledged that he had no constitutional authority to do so because the separation of
power, the legislative branch response ability to make law. this is not regulate interstate commerce. it is forcing businesses to do what the federal government does not have power to do in and of itself. we find ourselves firing hard-working americans including her rogue law enforcement first responders and frontline health care workers, inexcusably diminishing our ability to respond to emergencies, treat the sick from the china virus and other health issues and to protect americans. we are to pleading our workforce, hurting already struggling businesses and further disrupting supply chains. to the degree that -- they are greatly declining across the country. my only real question cannot be answered by these panelists but
how we can continue, let alone possibly justify this terrible violation of our constitutional oath. it is traveling on the freedom and welfare of the american people. 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 is not hard to imagine about an administration that weaponizes agency against the american citizens. it is targeting businesses it does not agree with. much like the obama administration did. do you have any thoughts regarding why this threshold is being raised so astronomically to a 700,000 on penalty?
>> i am not privy to that information. we spoke earlier about how it impacted. i don't have any additional insights on that. >> it is 70,000 now and they are looking to raise its $700,000 to try to force businesses, punished businesses for operating their businesses and not violating the rights of their employees. with that, i go back, madam chair. >> thank you very much. >> thank you for holding this hearing on an issue of life and death. i could not agree more with my colleague. he talked about freedom for our bodies except for when it comes to women it seems. what i would like to ask is a question of professorship ira --
professor ship ira -- shapairo. he is extremely concerned on the validity of what is being submitted to him in terms of proof of vaccine. many of us had these vaccine cards. apparently they are readily available through the internet that you can also put down whatever you want. what steps can an employer 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 are looking at that will allow him to validate what he is
being told or shown is actually true? >> thank you. that is just one of a host of details. that is true of most rules. states have records. 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 means good faith compliance by employers. that is what it expect of them. if it turns out false vaccine cards are a problem, it is something that can be addressed. >> we really don't have our -- a
mechanism to address this. to work in a nuclear power house, you have to go through a series of background checks. i would assume as part of that that the vaccine proof will be one of those. is there anything available if something is falsely submitted knowingly? >> i don't know of any existing regulation at the moment. i don't know of one that penalizes employees or other people. i don't know of all of the possible loss that could come into play. -- laws that could come into play. >> thank you. a question with a twist.
you talked about your testimony, that a disability would be the issue. how can an employer verify the disability you are referring to does have a contradiction to having a vaccine? how does something he go about saying that question mark >> you can request this from a health code provider. -- health care provider. >> the doctor would have to say that this disability is a reason to not have the vaccine? you would have to tie those two together? that there is a contradiction?
>> correct. >> thank you. i go back. >> thank you. ranking member fox, you're recognized for five minutes. >> thank you. it has been widely reported that the emergency temporary standards demanded by the white house and that the agency has struggled to write rules that can withstand legal scrutiny. they will likely claim that all employees of companies with over 100 employees regardless of industry are in grave danger. the arbitrary scope -- is somebody pounding in the background? it is going to make it difficult to hear. >> please make sure that you are
muted. thank you. >> thank, ranking member fox. -- thank you, ranking member fox. it has become necessary to address the greater danger with the administration suggesting this is working and numbers are going down, how this ties into the workplace specifically. how they will support the division. we don't have the science, we don't have the data that osha has relied on, underlying its requirements here. whatever they may be. we have not seen them yet. typically, when osha undertakes
a massive ruling like this, we would have the science beforehand and we would know what we are relying on. some of these determinations have been made ahead of time without the consideration of the experts and health administration. they were dictated by the september 9 action plan with president biden. we are setting ourselves up for the complexities in the various jurisdictions that will be responsible for her handling -- for handling this. >> if osha can stretch the authority delegated to it by congress to issue what is clearly a public health issue -- this includes accepting formal comments from affected stakeholders before overall goes
into effect. what precedent will this set for future osha regulations? there is still bad noise in the background. >> it is possible that the whooshing sound is coming on the slight delay of audio from the speakers to your mic. if you could meet yourself -- meet yourself exactly when you -- if you could mute yourself exactly when you finish talking and unmute yourself right when you plan to begin talking, that would help. >> as a regular part of this toolkit, we get to -- we can see great danger.
this was a threshold set by congress. it is rare that we have seen it 10 times in history. we need to follow the framework, the statutory framework and choosing this more frequently. >> on friday, joe belinsky said the united states may change its definition of fully vaccinated against covid-19 as more americans become eligible to receive booster shots. could the ever-changing guidance from the cdc regarding vaccinations create a conflict with the osha ets and create liability for employers? >> it could cause confusion. this region has not been on the same page with regard to covid
guidance. osha can decide about whether or not they can apply. the occupational health administration needed to evaluate it because they have not coordinated it. osha does not have a seat at the table. i think that is very interesting given that it is about the workforce. we are going to see more confusion. >> even though i have lost some time, i am going to yield back. >> thank you. i will take it then.
looking ahead to the christmas season, could you say a little bit more about the impact of the vaccine? >> i think there will be a ramp time. there will be a lot that employers have to stand up. you need two weeks on top. you're talking about six or seven weeks to get fully vaccinated. that is if you get your shot the first day. >> thank you very much. >> represented hayes, your
recognized for five minutes. -- representative hayes, you are recognized for five minutes. >> thank you. 70% of american residents have received at least one dose of a covid-19 vaccine. even with strong and growing vaccination rates, we have to protect the health and safety of everyone greatly impacted by this fire. that is why connecticut instituted a vaccine requirement which has resulted in a 95% compliance rate. unfortunately, vaccine noncompliance is still a reality in our state. the governor recorded that they have taken action against 121 state employees for vaccine noncompliance. in addition to state employees, at least 200 care workers in my state have faced termination for failure to comply with vaccine mandates.
while lidge's concerns regarding the covid-19 vaccine have been widely reported, state leaders have been working to ensure they are protected from this virus. many leaders of state organizations have indicated they will not endorse religious exemptions from vaccination. madam chair, i asked unanimous consent -- my question is for professor dorfman. does the law allow for employees to filter out objections that are submitted as religious but proved to not be based on religion? >> an employer would have a limited inquiry as to the sincerity of the religious belief requested exemption four.
if those were not found sincere, those can be thrown out. quite thank you. it is imperative that we continue to debunk misinformation surrounding the vaccine. what i will say is one of the hardest things throughout this pandemic for me as a woman of faith is to not be able to worship in person. i am deeply empathetic to these concerns. i also recognize that i can't find a religion that has any specific concern about vaccination. it is important to get good information out there. direct outreach is critical in preventing covid-19 fatalities. what is your assessment of how
employers under civil rights law can approach employees who have these objections? must those employers consider the threat of covid-19 and -- as they determine what may constitute undue hardship for employees? >> anything more than a talk to the employer is going to be considered an undue hardship. when we are talking about costs, we are talking about the risks of other employees getting covid-19 and the ability of the employer to conduct business properly. in those situations, if there is
-- they can refuse to accommodate -- a request to not get the vaccine. >> what does the employer legally have to do under title vii? >> in those situations, the employer and employee will discuss what will be the reasonable accommodation under the circumstances. those could be working remotely. it could be to be reassigned to another position. it can be a revised schedule. those can be reasonable accommodations as long as they don't pose undue hardship on the employer. >> thank you for your time today and your thoughtful responses to all of these questions. with that, high-yield back.
>> yes. i can speak to the standard that is required for osha. i think they are going to have trouble meeting that standard. there are a number of covid investigation protocols. including in certain circumstances, vaccine mandates. i am speaking in more of a guest standard about how private employers address their workforces who are not compliant. i don't think we know yet. people will have to show how
they deal with their federal contractor workforce as well. >> president biden issued such a broad vaccine mandate. for osha to do this with mission moratoriums -- we are talking about viruses. if my colleagues want to mandate so much, wouldn't it make more sense for a legislative branch to ask if they can pass this if they believe it is so important? what do you think? >> it does grant authority to the health administration under divine circumstances. osha will need to demonstrate
that there is a grave danger. >> my question for you is are you saying if my colleagues wanted so badly to have this mandate, they should vote in the legislative branch. would that provide a lot of constitutional authority challenges? do you think it would be a better choice if this committee believes it needs to be mandated? >> i don't think that is my determination to make. i think that is better addressed to your democratic colleagues. i think there are some issues and hurdles that they will have. >> mr. dorfman, if you have a second, do you believe that there will be less potential challenges if we dealt with this issue?
i'm here to talk about the civil rights and civil rights requirements. >> you have any thoughts on that? the last lawyer on this panel. >> thank you, congress has had act -- has acted. in enacted the osha ad. osha has the legal authority to have an ets. we disagree about that. there is no doubt, as the congress constitutional authority to create the osha act. in the issue is not a constitutional one, it's whether or not osha has authority. >> they want to clarify this legal authority. but specifically, the challenge of the issue. they can talk about how constitutional it is. but would you believe it would be better?
>> i think we are going no find out whether it is. as was predicted, there will be lawsuits. >> i yelled back. thank you. >> you are now recognized for five minutes now. >> it has taken osha far too long to move past the voluntary guide fact sheets and significant fines. instead, take strong actions to protect our most vulnerable workers while the initial etf was the good first step, its scope was to narrowly limited to health care related settings. that is why i am relieved the ministration is now taking additional steps to protect more front-line and essential workers with the router ets. however, osha must still learn from its low 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, the safety issues will always be here at the forefront in the future. professor schapiro, 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? >> 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 or pandemic because we don't know what the next pandemic will be.
and once osha right now ica think as you are suggesting there's an emergency we need to do that we should think about how we create universal standards to add more expeditiously, and more protectively the next time around. >> thank you. 40% of all workers are covered under osha estate plans instead of federal. in some states have had local plans such as thehe house-- souh carolina, utah, arizona 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 etf for healthcare workers or adopted an equivalent standard. doctor shapiro if states refuse to implement a osha etf what is
the recourse to ensure the federal standard meets the equivalent standard is enforced in the states and what process does osha need to follow quote? >> osha has the authority to take over a state program if it's failing to protect workers. it's done that before regarding north carolina and the protection of poultry workers. that's a radical remedy, but might be necessary here. before we get there, both estates will be subject to lawsuits by uncovered workers that seek to court order to we call mandamus to require those estates to obey the law, which is they have to meet the minimum standards set up by osha. that's a mandatory duty, subject to mandate is an private lawsuits by employees will enforce this. >> thank you. madam chair, i yield back.
>> thank you. representative, you are recognized for five minutes. >> thank you madam chair appeared in the state of new york we have sued for the governor health vaccine mandate and we are facing a crisis as a result of this unconstitutional mandate. in september, in my district lewis county general hospital announced a temporary shutdown in their maternity ward due to a workforce shortage stemming from the vaccinein mandate robbing te rural community of service and frontline healthcare workers ability to write for their families. mom myself, particularly when i think 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 mandatescr across the country
there was a survey of a number of employers and 89% said some of the workers will resign against the new mandates this of course as we face a supply chain crisis in time for the holidays. my question is for mr. hecker dear could you believe the biting maxi-- vaccine mandates is likely to exacerbate workforce shortages? >> thank you, representative. i think this is one reason that massive undertaking like this needs to be thoughtful and knowledgeableug and not rushed they need to take into account the stakeholder comments and input of the practical impact. there is already a workforce shortage and it couldn't continue or be exacerbated.
my clients and-- [inaudible] to discuss earlier that one of the accommodations could be remote work, but as a federal contractor vaccine mandates actually require vaccination of remote workers covered under the contract. i don't know that we know or how we will address remote workers, but i think we have a number of issues on labor supply. >> the remote worker excuse is its third particularly when talking about healthcare workers. you cannot deliver babies remotely. that's impossible and same goes for law enforcement and first responders as you will see after multiple years of high crime
numbers in new york city, for example. we are now facing a significant shortage of first responders and law enforcement officers because of the vaccine mandate. do you believe and i think we can all agree losing a job is generally detrimental to workers overall health and well-being. >> i'm more here to talk about the standards, but yes, i think being employed-- i enjoy my work and the opportunity, so i think -- [inaudible] >> in my district i represent hard-working families and i get text and because every single day. they love their job. they are dedicated to their job and they are frustrated and panicked, frankly, that they are leaving their jobs because of
thisco unconstitutional mandate. my last question is about the compliance cost and the burden to employers who will incur the costlo of this mandate. can you walk through that challenge for our employers? >> it's difficult to do that-- [inaudible] that's really the only group taking stakeholder input. we don't know the testing allegation, but weekly testing will be very expensive. i mentioned earlier-- [inaudible] you canom communicate to your workforce. you can do all these things to consider what you need to do
when you have issues and how you will deal with this. we saw initially as you mentioned healthcare and obviously it scopes narrowly to healthcare the draft that osha initially worked on was broader presumably osha and the administration determined they couldn't meet the necessary standard threshold so curious we are looking at this for months later there was no mandate in the healthcare-- [inaudible] >> thank you. i yield back. >> representatives stevens, you are recognized for five minutes. >> thank you for joining us today. certainly your company, columbia is not the only private company in the united states encouraging the workforce to c get vaccinatd and welcoming a comprehensive cohesive federal approach. is 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-- the other day i was talking to a constituent in michigan who gosh, i want to help out with my friends business but i don't feels total safety until we get our vaccine thresholds up. although, michigan is doing a good job particularly in southeastern michigan. also, small business roundtable recently issued a statement saying american business leaders know how critical vaccination and testing are in defeating the pandemic and writing over the past several weeks many companies have decided to implement a vaccine mandate for some more all employees, a
decision we applaud and quote. mr. luther diebel agree with the sentiment expressed by the business roundtable? >> i do in a crisis is very real. the labor crisis is real, but that is precisely why we need the uniformity to level the edplaying field to allow for uso do the right thing by our workforce in getting everyone vaccinated to protect employeest without being vulnerable to having have our employees walked on the street to the next retailer join that store where they don't face the same requirements because that labor shortage, that labor crisis is very real. >> what you know about other businesses? do you know if they agree with the position, your supplier?
are you getting a sense of general agreement with the statement expressed by the business roundtable? >> i do. i regularly participate in chr roundtables where there is a cross-section of industry leaders brought together to discuss the issues and frankly the pandemic and having unanswered approaches really banding together is the only way we've gotten to the pandemic is by sharing best practices and those conversations regularly come back to making it a safe environment for employees and knowing the risk israel and taking action on our own, but with a level playing field when we all playng the same rules tht it would help all of us have a bit more courage in taking these very difficult steps knowingly that there will beul people who choose not to continue employment under those circumstances. >> any strategies that you can
use to help employees who are partially vaccinated against cobra 19-- covid 19. any test practices you could share around those strategies and how encouraging employees to receive the bulk covid 19 vaccination. we have adopted a pay for vaccine strategy directed at our hourly workforce to pay up to three hours for the vaccine in addition to holding two vaccine clinics thatg coincided with getting the second shot as well as ongoing communication campaign to make sure they know when and where they can get vaccinated to make sure they have the community resources, so we have been in constant
communication to encourage a full vaccination as well as understanding and getting information from them on vaccine status including requiring uploading the vaccination card so we knew where our workforce stood. >> it's been a unique time to serve oure work ahead of human resources and it sounds like you have been writing the playbook as you have been going, but the dialogue with other companies and other stakeholders has not been very-- very beneficial and i really applaud you for coming here today and sharing your testimony and your success story we are thrilled to have received your playbook forav success and with that, madam chair i yield back. >> representative maclean, you are recognized for five minutes. >> thank you madam chair and thank you to all the witnesses today. i have also done several around
tables talking to several businesses, several people and thises is on everyone's mind, bt as it pertains toac businesses, they are very concerned with the mandates. we have labor shortages, supply chain shortages. also we have businesses who have been hardest hit will all of the mandates especially from our governor in our state with capacity restrictions and whatnot. they don't feel at all that the mandates will make it easier for them to hire employees especially with the 11 million jobs still out there to be filled. i think there is a lot ofhe division within the country right now. i think the american people are looking for a bit of truth, transparency and consistency. mr. hector, i would like to
start with some facts because i understand while feelings are important we have 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 three months and five years. even a yale study concluded antibodies generated from a natural infection were sufficient to protect against covid on average for at least 16 months. these are facts. these aren't hypothesis. my question is does it make sense to force someone, mandate and this is a mandate that is not by their doctor, not by their healthcare professional, looks at no underlying conditions, this is a government person mandating for someone who has had natural vaccines or has had natural immunity, doesn't
make sense to force someone to take a vaccine when they have already recovered from covid 19 and have natural immunity. why don't we takee that into consideration? >> thank you, representative. i don't believe osha's going to take that into consideration. i appreciate the studies you cited. i think we have taken a different position, but i think osha-- [inaudible] >> it needs to be necessary to address the danger, so to the issue about immunity i don't see taking that into account. >> we are trying to protect people and now, we are forcing people to get a mandate. at any rate, i appreciate. at the other thing is,
mr. hector, employers will be passed with a track sink tracking vaccination.ck do you have an idea what kind of record-keeping will be imposed on them? >> we don't know that. we can look to federal contractors for guidance and see if they were specific documents required, butdo that guidance is to show it rather than submit. i don't know that-- i think the former assistant secretary referred to this statute-- [inaudible] >> 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 >> i can't speak to worker's comp. it's really state-by-state system and i think there may be
different standards. >> i'm assuming that question will be answered before we mandate something; right? >> taking account of stakeholder input by osha they may have addressed it or considered it-- >> see, here's my concern. we are going to mandate something and we have no idea what the rules of engagement are yet we are going to mandate something, i mean, we are in baseball season. can you imagine going to the plate saying i don't know if we get three strikes, for strikes, seven strikes, just go to the plate and give it a whirl. if we are going to mandate something, don't you agree that we should perhaps maybe have some of the bugs worked out prior to the mandate? >> i think i said earlier we should have the data ahead of
time and know what we are going with this. >> absolute crazy having the data and the science-- >> time. >> thank you madam chair. >> representative, you are recognized for five minutes. >> banking manager and thank you to the witness for the responses today and the testimony. i want to follow-up on ms. mcaleenan doctor miller makes interest in natural immunity and i would like to submit for the record august 2021 cdc weekly report which includes a study of covid 19 infections in my state of kentucky among people who were previously infected with the virus. i ask unanimous consent for that to be put in the record. this study and concluded that vaccinated people work twice as
likely to be reinfected-- proves that real life examples indicate pretty strongly that you are much safer and much more protected from the virus if you have been vaccinated even if you had it before. clearly if you have not had it ended this basically shows the vaccines don't prevent infection and we have to consider that and we still don't know-- i know ms. mclean has mentioned a study that shows protection up to 16 months, but these are wide ranges. they are very uncertain and i think the question is do we want to make sure went have the best objection 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 otherv variants that may occur and again, this study in kentucky points to the importance of the vaccination even those who had prior infection. with that in mind i would like to ask the professor some questions about natural immunity and how an employee would handle employee objection to vaccination based on the natural immunity argument. is a employer required to provide them with exception to the requirement under the ada? >> now. reasonable consideration by an employerda that a person already got covid could still be a direct threat to the health of
other employees in the workplace , customers in the workplace. if you say science is still unsettled or whether a person has quote unquote natural immunity, whether thatit person can still contract or spread covid 19. >> thank you. is there any requirement under civil rights laws that compel an employer to pute out accommodations to employees who claim to have natural immunity? >> now, there is not. >> that's important point and i have gotten all sorts of arguments in the last year end a halfso about we are still in uncharted territory to a certain extent. the information it accumulates in the data accumulates. at there is still an awful lot of unanswered questions about the course of the virus and protection and seems to me that we know vaccines work.
we know right now-- i think we know it's the most probable and most likely protector of everyone involved at this point in our state of knowledge, so once again i think the witnesses and i yield back. >> thank you very much. representative fitzgerald, you are recognized for five minutes. >> thinking on chair.or mr. hecker, in addition to this committee i'm also on the small business committee and you have had aea steady stream of stories from small business who have just been decimated by the pandemic.im first, you know obviously they were forced to shut down and then they were forced to compete on this system obviously created on the enhanced unemployment benefits.
what i'm most worried about is when-- [inaudible] that somehow small business and you know it can be anywhere from two employees obviously, what i consider small business up 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 what we refer to and ultimately kind of a heavy hand of youly know what would be the government and osha etf on these businesses. can you comment on that? i think that isus critical that the size of these companies affected would have to be taken
into account. >> yes, representative fitzgerald. we understand there will be a hundred employees. we don't now how to calculate or justify. even if you are about 100 employees there may be circumstances where you don't have all the framework in place for hr or recruiting or onboarding or legal or science to address that kind of issue and figure out how to deal with it, how to navigate and also how to implement once you are able to determine that. if you are borderline, 90 employees right now, well, what if you are 104 and july? are you covered? you may be, so there is some
validity there. there certainly could be issues for smaller and medium-sized businesses with the complexities of this rule. >> thank you for that. let me follow up with you. the guidance from the administrators say for federal adworker task force there seemso be some discussion, again about extending the mandate to even those workers that are working quote unquote remotely and i know that's taken 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 had already been collected or request for future data to be collected? to me it's like mind-boggling that if there is someone working
at home that suddenly you could have a osha rule applying to that individual. i'm not aware of that ever happening in the history of osha or in the sba and everything they oversee. >> so, our understanding from i believe september 10, call that osha put on his they don't intend vaccine mandates under the etf to fully one 100% remote workers, but if you are someone that comes to the office he may follow under and as noted previously federal contractor axing mandate actually specifically does apply to remote workers in connection with the federal government. there is a conflict there between the two mandates again adding to the complexity that employers and employees need to navigate to determine their
compliance obligation. task force guidance you reference actually again quickly says remote employees are covered and also says basically osha etf is the safeguard and if you comply your subject to the federal contract mandate so again the uniformity we are looking for or that may have been promised from the approach were not really seeing it and i don't think at the federal level because each union can enforce its own implementation of the mandate and then we have-- >> thank you madam chair. i yield back. >> thank you. representative, you are recognized for five minutes. >> thank you madam chair. mr. shapiro, you know other people of color are disproportionately represented in many occupations that make up
the lowest paying highest risk jobs that have been deemed essential during a pandemic such as healthcare service, childcare, grocery clerks and meatpacking and we also know they have faced worse health outcomes. attributed to multiple compounding reasons including systematic racism and inadequate or-- no means of transportation to get to the vaccine site, inadequate access to affordable quality health care and more how would osha's upcoming emergency temporary standard better protect and address racial inequities? >> by increasing the likelihood everyone they will come into contact with hisis vaccinated or is immediately tested providing a layer of protection that we have not provided to date. >> thank you very much. mr. luther, thank you for joining us today and telling us
about your efforts to protect your workers. i appreciated hearing about how much effort your workplace put into removing barriers semi- workers face such as offering paid leave and for many workers they cannot afford to miss work to get vaccinated if it means they won't get paid leave. people should not have to choose between a life-saving 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 implemented paid leave and how did you make it feasible so employees face one last barrier to getting vaccinated? what kind of impacted paid leave have on your staff? >> paid leave it katie critical role in keeping our business afloat and employees engaged in the workforce in addition to paid leave to get the vaccine we also introduced catastrophic leave program that was new to us that really took intoo account a
variety of impacts that the employee may experience in relation to the pandemic whether it's adverse effects, childcare crisis, whatever, we gave two weeks of paid leave in order to deal with those types of catastrophic and unexpected events to provide that cushion in a time that was very, very scary for everyone, so it played a critical role in keeping our workforce engaged in keeping our business-- >> thank you very much, mount chair. i yield back. >> thank you. representative hawthorne, you are now recognized for five minutes. >> met thank you madam chair. there are 20 year veterans of law enforcement agency turning in their badge because they refused about the need to to tierney. nurses who trained for years plunged themselves into debt to fulfill their dream of caring for others to have the
government stripped them ofe their jobs because of viruses they wered themselves committed to defeating and i barely recognize america anymore, madame chairman as you and your colleagues have sacrificed freedom for safety if you're forced mandates is nothing short of subsidized-- something must be done. today and introduced a bill to address the tyranny. at the justice for all businesses act will stop joe biden's overreach in its tracks it strips the secretary of labor from using funds to enforcing mandates, not a lawno of a fake mandates, forcing employees to be vaccinated against covid 19 tand bravest the federal itgovernment from laying down for-- laying businesses. my bill won't be the end of the matter. i will work until washington bureaucrats know who they work for. it's not a matter of health. it's a matter of liberty. at the right to work his american. when you strip away someone's livelihood you rob them of their freedom. the representative away their
identity and tarnish their dignity. there are patriots across this nation that would ratherer see their draw-- job stripped rather than lose the right of life, liberty and the pursuit of happiness. thank you for your testimony today. what does it say about president biden that his outsourcer shutting down this virus tode oa >> i thinknk president biden is frankly 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 the supply chain, keeping us from manufacturing our goods in countries where we produce goods or being able to come together and bring employees back together to
really enjoy what collaboration feels like and i think he is helping us navigate through a complex of requirements that are different state-by-state and county by county. >> ms. luther, i heard in your testimony we were talking about getting paid leave for people to get the t vaccine and i do not care what you used to incentivize vaccinations in your own company. that your prerogative, but there is not disparity the tween persuasion and coercion, the difference betweenen liberty and tierney. you ever resorted to a presidentsyo turning to the government to break the will of your subordinates and legitimize your medical intrusion. i believe this mandate literally forcesie americans to choose between their livelihood and a deeply intrusive medical ultimatum and the fact is you have a wildly unpopular policy that you wanted to enforcing you
need government overreach to give you air cover. you admitted this in the testimony calling the government mandate a tool in the fight to run roughshod over liberty. you care more about the bottom line then allowing employees to make medical decisions for themselves and i really believe you are more worried about your company's esg score for your ticker symbol and you are to your employees individual freedom. other members of the committee may hesitate to call you out, but i will not your tactics are disgusting, un-american and in the coming months america will be plunged into financial turmoil because a president biden's failed economic policies which led to the supply chain shortage and a shortage of a workforce and your company will be complicit ripping financial stability away from americans. i would like to thank having mr. hecker on for your expert testimony.t mr. hecker, what impact will enforcing the atf, a controversial mandate have on a public perception of osha and agency's ability to implement
other work for safety? >> thank you. it could certainly in one respect full resources away from other workplace safety missions. impact on the effort and beyond that the penalties could be high and it could be very difficult and challenging or cost intensive. under the etf it could also-- i said earlier not to politicize public health and so osha as seen as a political tool rather than safety and health enforcement agency and it could lead to pushback, greater push back. >> gentleman's's time.
>> madame speaker-- madam chair, i yield back. mr. hecker, thank you very much. >> representative alan, you are next, but before you do that, i do have to speak on the floor on a bill the committee has so the representative will assume the gavel. >> thank you madam chair. i'm not sure who is next up-- >> its representative alan. >> representative alan, you are recognized for five minutes. >> thank you. obviously as we can tell by this hearing that this has created hysteria throughout the country. we pay a heavy price for covid. early on trying to figure out how to deal with it and of
course 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 to deal with and thank goodness for the development of the vaccines. ide have been vaccinated. my wife has been vaccinated and most of my children have been .vaccinated, but again it seems like as always we are getting the cart before the horse because there's a lot of unanswered questions here that it sounds like we could be fighting for i do know, years in court on a lot of these constitutional law issues that have been brought up.
in out our rights guaranteed under the constitution particularly when you have a virus that is absolutely still a mystery. when i say mystery, i mean, i know people that have antibodies that had covid and they didn't even know they had and so they asked me, why should i get a vaccination. and i said w well, you know, i'm not the one that's going to tell you to do. i think you should talk to your dr. we do know that both unvaccinated and vaccinated folks doo carry the virus and cn expose others to the virus. so, like i said we are mandating something here in totality that really needs to be examined
individually. we have got companies that are doing this. obviously, columbia sportswear is doing their thing and you know as a company they have a right to do that. i'm not sure whether i agree with you or not agree with he appeared in my company we would not dare do something like that, but mr. hecker, i mean, it looks like to me-- well, let me say this. this economyus 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 have 70% consumer -based economy, but that isn't necessarily going to continue particularly when we have these disruptions and by 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 is the economy? overall this government one-size-fits-all and health care has under the threat for since obamacare, i mean, we are telling people how long to stay in the hospital now. telling people, okay this is how long you can hamper rehab and if you are readmitted and you know the thing to understand is 7 billion people in the world and we all have different dna in a different thumbprint and so i could say this one-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 you know employees out there, if you have someone who has had covid and has antibodies, how can you fire them? >> that is as you said an individualized question and it's hard for me too speak to that specific circumstance. to your point, i think we are here-- well, i am here speaking about the legal threshold for this mandate and how there are difficulties with the approach here and particularly where stakeholder input did not really take in and we have-- things as you noted are changing. private employers could address that perhaps.
>> thank you so much. i yield back. >> i now recognize mr. murphy for five minutes. >> thank you, mr. chairman. i appreciate the ability to be on this subcommittee meeting even though i'm not on the committee. i have 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. i think i was one of the first people that read some of the first articles in the lancet in february, 2020 talking about this virus and actually picked the phone up as a lot of physicians do and we asked people smarter than our in our disciplinary is to find out and told for many folks who are much smarter than i am with us about how it's going to wreak havoc across the world and that has tarps started to be the case. the amazing thing is being a
physician of 30 years there are a lot of things that go on with this. i would love to ask mr. dorfman a question because i just looked and you have had a lot of interest in healthcare and i was wondering if he could answer a few questions. are you aware when people come into my office as a physician and by the way i'm still practicing, they sign a permission form for me too treat them? are you aware of that clinic as. >> good. you know as the role of a physician is not telling peoplet what to do, it's going through treatment options and discussing the risks and benefits of a particular medication or a certain type of surgery;? >> yes. >> if i'm someone who has a tumor, cancer or kidney stone and i make a recommendation of a treatment regimen based on a permission form, that they fully
understand the risk and benefits of what we are going to do when they sign a permission form giving me permission to follow that treatment plan;? >> informed consent. >> right. you agree with me;? >> yes. >> anywhere where legislation was passed to free drug companies from any liability of any effects that occur because of thecu vaccine;? >> i testify on civil rights protection, i don't testify-- >> i don't't not ask you a testified on. are you aware of that particular legislation? >> for this testimony, i am not. >> alright. so, then tell me since the vaccine is 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 all decisions made about medical treatment or between patient and their doctor and the patient gives informed a consent? >> as i mentioned, i'm not here to talk about informed consent. i'm here to talk about the requirement in civil rights protection. >> i did not ask you that question. i look at your cd, the authority you have and i wonder if you could maybe postulate on the question. >> i'm not going to postulate on it because-- >> youou don't want to answer te question. okay. let me ask mr. hecker, then. i will go to mr. dorfman because i know that would be an impossible question to answer because there are medications and treatment regimens are treatment may between doctor-patient, and not citizen government but this particular
administration now seems to want to create their own medicines. >> a matter of public health, not a matter of physician and-- >> is entirely the matter. it's a treatment with the side effects. definite effects from this, so it is definitely in the purview of doctor-patient relations. let me ask doctor hecker a quick question. osha hasqu come out with mandat. how well do you think businesses will be able to come out and adapt to those things in such a short amount ofpt time? >> thank you, representative murphy. i think there needs to be a helpful approach and taking stakeholder input. if you decide to get that moderna, the data effective you will likely need six or seven weeks before you're fully vaccinated under the current definition and some smaller businesses closer to that 100
employee threshold may not have robust frameworks in place to ramp up and execute this requirement, so i think there will be difficulties if the standard is met and it goes into effect. >> thank you. looks like my time has expired. thank you and i will yield back. >> are there any other members who have yet to question and wish to question? hearing none, that will conclude our question-and-answer session. i remind my colleaguesse pursuat to the material for submission for the hearing record must be submitted to the committee clerk within 14 days following the last in the hearing, so that means by close of business november 9. the materials 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 ticket documents are limited to 14 pages each. longer than 50 pages will be incorporated in the record by an internet link you must provide the required timeframe, but please recognize-- [inaudible] pursuant to house rules and regulation item for the record should be submitted electronically by e-mailing submissions s. again, i want to thank the witnesses for their participation today. i was on the joint committee may ask additional questions for you and we asked the witnesses to please respond to those questions in writing and the record will be held open for 14 days to receive the responses i remind my colleagues that practiceto committee with questions for the hearing record must be submitted through the majority committee staff within seven days and questions committed must address the
subject matter of the hearing. i now recognize the distinguished ranking member of the crh as a subcommittee for closing statement. yes? he is not here. i now recognize that distinguished chair of the subcommittee for a closing statement. >> i am here. thank you. thank you to chair adams for hosting this hearing and thanks to our witnesses or your testimony. today we reflected on the continued threat covid-19 delta variant poses to the american people and the importance of vaccines in the state of our workers. as we continue to battle this historical global healthto emergency, covid 19 requirements are logical steps to turn the page in our fight against this
pandemic. applied employers across the country that have made the health and safety of their employees and community a priority and have demonstrated the same requirement is critical to protectingg people against culminating 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, i had to leave the hearing for a brief amount of time. during my absence was an accusation made against luther and name-calling calling her an american. i would had objected had i been here, but at this time i went to note that eyewitnesses are here to bring expertise as they are dedicating their time and knowledge and if we have differences amongst one another we should do it respectfully without disparaging witnesses, so i wanted to get that on the
record, mr. chairman, but thank you to each and every one of our witnesses for your time and expertise and i now want to yield for closing statements. >> thank you madam chairman. to all of the witnesses that have participated today, this has been helpful and informative and just want you torm 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 in supply chain crisis. at a time when there are 10.4 million job openings in the country, when we have seen thousands of workers across the country leaving jobs due to similar state and federal mandates it's-- [inaudible] moving forward with the mandates the osha mandate also fails to consider the substantial uncertainty, cost 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 is a prayer for their employees based on evolving science among government, guidance and industry best practices. as i said in my opening opstatement, this isn't about building back better. it's crushing the job creators and american workers under the heavy hand of government erintervention. thank you again to the witnesses and those participating today recommend them chairman, i yield back. >> thank you very much. i'm not sure-- thank you for your closing statement and 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 assayed during a pandemic. we know vaccinations save lives and mitigate the spread of covid 19. far too many people remain in vaccinated even while workplace outbreaks of covid 19 continue. as our witnesses made clear, broad workplace vaccine requirements are the next step we must take to prevent workers from spreading the deadly virus. i'm grateful we have the opportunity from employers who are already implementing the workplace policies for their workers. these employers demonstrate that it's not only possible to implement workplace vaccinated requirements, but also essential to ensuring workers and workplaces are well protected against culminating. as we continue to face one of the worst workplace safety crisis is a recent history we must ensure all workers have the
workplace safety measure including vaccine requirements that they need to help save to reopen our economy. i want to thank witnesses again and i yield to the ranking member for further remarks. >> thank you, mr. chairman. i would like to before i begin my closing remarks ask unanimous consent to enter into the record letter from the national federation of independent businesses opposing the biden administration efforts to direct osha for emergency testing vaccinations appeared. osha vaccine and testing mandates will have devastating impacts on an already w strugglg a labor market and further contribute to the supply chain crisis. after hearing from many businesses across pennsylvania it's clear that this mandate will drive even more americans out of the workforce in the harsh fines for violations of the mandate will almost certainly run some companies out of business. not only is this nationwide oshi
mandate a government overreach, it also exceedsnt osha's statuty authority. at there is a reason that out of the 10 emergency temporary standards issued by osha in its 50 year history, nearly all that's been challenged or 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 required in communities through vaccine and infection in the policies and protocols implement them by employers are all contributing to this positive trend. the osha vaccine and testing mandate where the last thing businesses and workers need and it's not the w 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 backo you. >> thank these gentleman for his closing statement and if there is no further business, without objection, the joint subcommittee stands adjourned.ch >> thursday doctor anthony apache and cdc director testified to the senate health committee on the biden administration's covid-19 response. watch live on c-span3 firstname.lastname@example.org or watch full coverage on c-span now, our new video app. >> c-span is your unfiltered view of government. including smart life. >> the greatest place on earth is the place you call home and at spark light it's our home and
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