Mich. County Road Commission Self-Insurance Pool Issues Public Comment on OSHA Rule

WASHINGTON, Jan. 22 -- The Michigan County Road Commission Self-Insurance Pool, Lansing, has issued a public comment on the Occupational Safety and Health Administration rule entitled "COVID-19 Vaccination and Testing: Emergency Temporary Standard". The comment was written on Jan. 18, 2022, and posted on Jan. 19, 2022:

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I. Introduction

The Michigan County Road Commission Self-Insurance Pool ("MCRCSIP"), on behalf of our members, respectfully submits this comment to the Occupational Safety and Health Administration ("OSHA" or the "Agency") in opposition to the Emergency Temporary Standard on COVID-19 Vaccination and Testing ("ETS"). The objective of this comment is not to dispute the efficacy or desirability of voluntary vaccinations.

Rather, the objective of this comment is to advocate the interests of our members and urge the Agency to carefully consider the practical and logistical impact its ETS will have on local governmental agencies and municipal corporations that are subject to its requirements in states, like Michigan, that have an OSHA-approved state plan under 29 C.F.R. Sec. 1952.13.

Further, this comment operates to: (a) object to the application of the ETS to our Members under the terms of Michigan's OSHA-approved state plan, 29 C.F.R. Sec. 1952.13; (b) inform the Agency that Michigan County Road Commission worksites and covered workplaces pose low-risk as it pertains to exposure to SARS-CoV-2 or individuals infected with COVID-19; (c) describe the inevitable consequences to Michigan's critical infrastructure if the ETS is applied to governmental agencies and municipal corporations like Michigan County Road Commissions; and (d) propose less disruptive, equally effective strategies for mitigating potential transmission of SARSCoV2 within our Members' workplaces. Indeed, collective experience has demonstrated that the ETS is not justified because there is no "grave danger" from exposure to SARS-CoV-2 in our members' workplaces. Similarly, collective experience has demonstrated that the ETS's "strong encouragement" of mandatory vaccination policies is unnecessary to the goal of reducing the likelihood or transmission of SARSCoV2 in our members' workplaces.

II. Public Comment Regarding OSHA's Vaccination and Testing ETS MCRCSIP members include 78 County Road Commissions located throughout the State of Michigan. The number of persons employed by each Road Commission throughout Michigan varies widely depending on location, geographic size, and population size of each respective County. There are five MCRCSIP member Road Commissions with 100 or more employees. It should be noted that, absent an OSHA-approved state plan, none of MCRCSIP's members would be subject to OSHA's ETS regarding COVID 19 Vaccination and Testing./1

However, because Michigan does have an OSHA-approved state plan under 29 C.F.R. Sec. 1952.13, OSHA's standards extend to "State and local government employers" within the state./2

Thus, while Road Commissions in smaller counties--i.e., Road Commissions with under 100 employees--are presently exempt from the ETS, those in larger counties--i.e., those with 100 or more employees--would be subject to the ETS. OSHA has directed state plan states like Michigan to adopt OSHA's ETS or its equivalent by January 24, 2022.

a. MCRCSIP's Objection the Application of OSHA's ETS on COVID 19 Vaccination and Testing to County Road Commissions.

For the reasons explained in detail in this comment, as well as those raised by private and public employers with 100 or more employees nationwide, MCRCSIP's members strongly oppose the application of OSHA's ETS on COVID 19 Vaccination and Testing to County Road Commissions located within the State of Michigan. In addition to the wealth of constitutional, statutory, and procedural concerns expressed by the petitioners in the ongoing, federal litigation challenging the ETS/3--each of which is hereby restated and incorporated herein by reference--the ETS is both unnecessary and ineffectual as applied to MCRCSIP's members with 100 or more employees ("Qualifying Members"). In fact, if implemented and enforced against MCRCSIP's Qualifying Members, the ETS will do little to nothing to provide employees increased levels of protection against exposure to SARS-CoV-2 and will drastically impair Qualifying Members' economy and efficiency in performing the work required by Michigan law and necessary to maintain critical infrastructure for the benefit of the entire public./4

b. As applied to MCRCSIP's Qualifying Members, the ETS is not justified because those Members do not face a "grave danger" arising from potential transmission of SARS-CoV-2 within the workplace.

For nearly two years, the COVID-19 pandemic has disrupted work and home lives in unprecedented ways, leaving us all to navigate a slew of frequently changing local, state, and federal orders and guidance. The core function of Michigan County Road Commissions--which are nonprofit, governmental entities obligated to provide Michigan residents safe public highways for travel-- is to keep highways in reasonable repair so that they are reasonably safe and convenient for public travel. This public safety function provides vital support for every other type of critical infrastructure work because public highways are the backbone of transportation. This is the very reason that Road Commissions and their employees were deemed essential "critical infrastructure workers" from the outset of the pandemic. Furthermore, throughout the duration of various state level executive orders issued during the pandemic, the Michigan statutory basis for imposing liability upon Road Commissions due to a "highway defect"/5 has never been suspended. As such, it has been and continues to be imperative that Road Commissions carry on with the activities necessary to discharge their statutory obligation.

In March and April of 2020, Michigan Governor Gretchen Whitmer issued several executive orders, such as the "Stay-At-Home" Order./6

Under these Orders, our Members and their employees were deemed "critical infrastructure workers" ("CIWs") and were permitted to continue "in person" operations and required to adopt social distancing practices. Under the Orders, Road Commissions also had discretion to examine each of their activities and projects to determine whether any could be safely delayed. To comply with these Orders and also maintain their statutory duties to the general public, Road Commission members remained mindful and instituted practices that allowed them to continue maintaining and repairing highways so that they are reasonably safe for public travel.

With guidance from the Michigan Department of Transportation ("MDOT"), our Members throughout Michigan implemented policies and procedures designed to reduce transmission of COVID-19 among employees and continue to deliver critical infrastructure work. MDOT issued guidance for construction projects in connection with the orders and regulations promulgated by Michigan's Governor's Office and recommendations from the Centers for Disease Prevention and Control ("CDC"). This guidance operated as a measure to ensure that all employees working in the field and performing work in conjunction with MDOT to maintain Michigan's critical infrastructure had clear instruction and the necessary resources to keep themselves and their co-workers safe during the pandemic and to slow the community spread of SARS-CoV-2.

While most commercial and residential construction projects shut down during the height of the pandemic, most of our members' projects constituted essential activities. Therefore, without any federal oversight or extraordinary regulatory obligations in place, our members continued their critical work while appropriately protecting employees via practices of social distancing, masking as appropriate and feasible in the context of the work being performed, and compliance with all other recommendations issued by the Centers for Disease Prevention and Control ("CDC") relating to reduction and prevention of SARS-CoV-2 transmission. Moreover, our members have incorporated and continue to incorporate CDC-recommended safety procedures, including routine sanitation, the use of face coverings, physical distancing practices, contact tracing, and limits on the number of workers in a vehicle when performing road work.

Notwithstanding the seemingly everchanging regulatory landscape, Road Commissions throughout Michigan have continued to perform their critical essential work, conduct minimum basic operations, and allow employees to work in-person or on-site with the necessary safety procedures in place to maintain their operations. In doing so, our members have cautiously restricted the number of workers present at each worksite to no more than necessary, ensured social distancing practices were followed, increased standards of facility cleaning and disinfection to limit worker and patron exposure to SARS-CoV-2, and required workers to stay home if they display respiratory symptoms or have had contact with any person who is known or suspected to have developed COVID-19. These measures align naturally with the Road Commissions' goal to reduce transmission and avoid becoming shorthanded among their ranks of critical infrastructure workers. The State of Michigan has not reduced or suspended the Road Commissions' statutory duties and liabilities to the public, so maintaining a healthy work force during the pandemic has been and remains paramount.

As clearly demonstrated by this reality, our Members have operated safely and effectively without the implementation of any federal oversight or extraordinary regulatory obligations. Our members work almost exclusively outdoors, building, maintaining, and repairing highways, bridges, and culverts. While at the outdoor worksites, Road Commission employees are often isolated operating a vehicle, machine, or other piece of equipment and performing work that facilitates social distancing.

As such, our members' workers have minimal occupational contact with fellow employees or the general public in their day-to-day activities and, therefore, do not face a grave danger from the potential transmission of SARS-CoV-2 within the workplace. Nonetheless, our members with 100 or more employees will be required to implement and enforce the ETS or its equivalent while the majority of our members are presently exempt from its requirements--notwithstanding the fact that all Road Commission employees perform the same type of work, in the same type of conditions, and have done so safely and effectively since the inception and throughout the entirety of the COVID-19 pandemic thus far.

c. As applied to MCRCSIP's members, the Agency's ETS will have a significant, adverse impact on portions of Michigan's critical infrastructure and will likely reduce our members' efficiency and net costs.

As noted above, our members are non-profit, governmental entities obligated to provide Michigan residents safe public highways for travel. If our members with 100 or more employees are subject to OSHA's ETS on COVID 19 Vaccination and Testing, it will impose substantial financial, administrative, and organizational burdens upon their daily activities and hinder their ability to both carry out their statutory obligation to repair and maintain the portions of Michigan's highways located within their respective jurisdictions. Predictably, while the ETS currently applies only to a handful of our members in some of Michigan's largest counties, those members are the ones who typically provide critical infrastructure support for many of Michigan's most heavily traveled public highways.

Furthermore, although Road Commissions in Michigan enjoy broad immunity under Michigan's Governmental Tort Liability Act, an exception to that immunity exists when an injury occurs due to the Road Commission's failure to exercise its statutory obligation to keep highways in reasonable repair so that they are reasonably safe and convenient for public travel. Throughout the struggles brought on by the COVID-19 pandemic, the exceptions under Michigan's Governmental Tort Liability Act remained unchanged.

According to the Kaiser Family Foundation, approximately 72% of unvaccinated workers reported they would leave their jobs if faced with a vaccine mandate, as opposed to other, less invasive protective measures./7

Further, it has been recognized that the construction industry has suffered from labor shortages nationwide./8

The State of Michigan is no exception to that issue. In fact, data published by the U.S. Bureau of Labor Statistics confirms that both quit levels and total separation levels are higher in the Midwest--where our Members are located--than in the Northeast and West, and that those levels are also higher in the industries most pertinent to our Members' employees' skill sets (construction, transportation, and utilities) than in other industries nationwide./9

When coupled with increasing calls for local legislation to combat vaccine mandates - such as the legislation recently enacted in Iowa, Tennessee, Kansas, and Florida guaranteeing unemployment benefits to workers fired for failure to comply with vaccine mandates/10 - it is reasonable to anticipate this trend will only continue to worsen in the face of the Agency's ETS on COVID 19 Vaccination and Testing.

Thus, while our members have worked diligently throughout the COVID-19 pandemic to maintain safe roads for Michigan residents, it is clear that, as applied to them, the Agency's ETS would only create additional obstacles that would hinder or prevent our members with 100 or more employees from meeting their statutory obligations. These members stand to lose requisite employees on a large scale as a result of this ETS. Specifically, some MCRCSIP members have employee vaccination rates around 50%, and they would stand to lose a large portion of their unvaccinated workforce in response to a vaccination and testing policy that complies with the ETS. This vastly limited, remaining workforce would struggle to maintain critical infrastructure in some of the most populous counties throughout Michigan.

Moreover, it is also clear that the imposition of the Agency's ETS will not only affect our members' resources in terms of manpower but will impose unrealistic financial and logistical burdens upon each of our members with 100 or more employees. Notwithstanding OSHA's dubious estimates of the time and administrative burden which will result from mandatory vaccination policies, the varying financial expenditures for each of these members cannot be reasonably calculated in terms of the administrative costs they will incur in attempting to enforce a mandatory vaccination and testing policy and attempting to replace the significant portions of their respective workforces which will be lost as a result of the newly required policy. It is impracticable and erroneous to project that each of our affected members has the resources and capabilities to meet these austere and unnecessary regulatory obligations. To that end, again, in complying with the Agency's ETS, our members with 100 or more employees will be hindered in meeting their statutory duties to the people of the State of Michigan.

d. As applied to MCRCSIP's members with 100 or more employees, the Agency's ETS is not necessary to achieve the goal of reducing the likelihood of transmission of SARS-CoV-2 within the workplace.

As described above, our members have continued to complete essential infrastructure projects for nearly two years without a single outbreak or cluster of COVID-19 cases. Undoubtedly, much of this success relates to our members' compliance with and implementation of the masking and physical distancing guidelines issued by the CDC. However, the imposition of mandatory vaccination and testing policies under the Agency's ETS--as opposed to the already existing practices of voluntary vaccination, masking, and physical distancing--is unlikely to have any appreciable impact on transmission of SARS-CoV-2 within the workplace.

For example, following clinical trials conducted at the University of California San Diego School of Medicine, Professor Francesca Torriani, MD, Division of Infectious Diseases and Global Public Health reported "Clinical trial data suggested decreased effectiveness would occur several months after full vaccination, but our findings indicate that confronted by the delta variant, vaccine effectiveness for mildly symptomatic disease was considerably lower and waned six to eight months after completing vaccination."/11

Specifically, as set forth in her joint letter to the editor of the New England Journal of Medicine, Dr. Torriani and her colleagues confirmed their finding that vaccine effectiveness had plummeted to an unexpected low of 65.5% as of July 2021, indicating a likely and originally unanticipated need for booster doses./12

Importantly, the UC San Diego clinical trials strongly suggest that vaccine effectiveness is similar to, and according to some studies lower than, the effectiveness of masking and physical distancing guidelines in reducing community transmission of SARS-CoV-2--i.e., a reduction of approximately 60-75% in many studies./13

The foregoing studies confirm that, over a period of just several months, the efficacy of vaccination in protecting individuals from SARS-CoV-2 infection is roughly equivalent to the efficacy of masking and physical distancing practices. Thus, by adding a vaccination and testing policy as required by the ETS, our members with 100 or more employees are being compelled to incur substantial administrative and logistical costs without any marginal benefit relating to the likelihood of SARS-CoV-2 transmission within their respective workplaces.

Alternately, a regulatory scheme focused on masking, physical distancing, and isolation as appropriate would almost certainly provide equivalent mitigation of SARS-CoV-2 transmission within the workplace without adding nearly the administrative, logistical, and labor costs our Members are expected to incur as a result of the current ETS. Further, such measures would not place the significant strain on employee relations that this ETS threatens to by requiring all employees--whether or not they are vaccinated--to submit personal and private health information to their employers as a condition of employment.

Accordingly, even if our members faced a grave danger from the potential transmission of SARS-CoV-2 within the workplace--which, as explained above, they do not--the present ETS still would not be necessary to effectively mitigate the potential dangers arising from SARS-CoV-2 transmission within the workplace. Rather, the ETS serves only to thrust employers, including some of our largest members, into the uncomfortable and unwarranted position of enforcing policies designed primarily to place financial and social pressure on employees who have not yet chosen to receive voluntary COVID-19 vaccinations. Contrary to the Agency's determination, this approach does not help businesses reduce inefficiencies and costs relating to COVID-19; rather, it forces both public and private employers nationwide to actively push one side of a nationally divided political issue no matter the cost to the employer or the presence of any actual danger to its employees.

III. Conclusion

For the foregoing reasons, MCRCSIP strongly objects on behalf of its members to OSHA's Emergency Temporary Standard on COVID-19 Vaccination and Testing. As explained in detail above, our members (both large and small) have successfully avoided many of the issues associated with workplace and community transmission of SARS-CoV-2 through compliance with existing CDC guidelines relating to masking and physical distancing. Thus, the addition of a highly invasive vaccine mandate and testing protocol is both unnecessary and ineffectual as applied to our members.

Implementation of the ETS or its equivalent on County Road Commissions in Michigan will create upheaval, inefficiency, and increased net costs which did not exist prior to the ETS.

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Footnotes:

1/ 29 C.F.R. Sec. 1910.2(c).

2/ 29 C.F.R. Sec. 1952.13(d).

3/ In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000, et al. (6th Cir. 2021).

4/ See MCL 224.21(2) ("A county shall keep in reasonable repair, so that they are reasonably safe and convenient for public travel, all county roads, bridges, and culverts that are within the county's jurisdiction, are under its care and control, and are open to public travel.").

5/ See, e.g., MCL 224.21; MCL 691.1402.

6/ See Mich. E.O. 2020-21.

7/ Id.

8/ See "Total separations levels and rates by industry and region, seasonally adjusted," U.S. Bureau of Labor Statistics, Economic News Release, Table 3 (December 8, 2021) (accessed online at https://www.bls.gov/news.release/jolts.t03.htm on December 10, 2021); Quits levels and rates by industry and region, seasonally adjusted," U.S. Bureau of Labor Statistics, Economic News Release, Table 4 (December 8, 2021) (accessed online at https://www.bls.gov/news.release/jolts.t04.htm on December 10, 2021).

9/ Id.

10/ See Cerullo, Megan, "States offer jobless aid to workers fired over employer vaccine requirement," CBS News (December 2, 2021) (accessed online at https://www.cbsnews.com/news/covid-vaccine-mandate-unemployent-benefitsrepublicanstates/ on December 10, 2021).

11/ "With Time and Without Masks, COVID-19 Vaccines Wane in Protection," UC San Diego Health ( accessed online at https://health.ucsd.edu/news/releases/Pages/2021-09-01-with-time-and-without-masks-covid-19-vaccines-wane-inprotection. aspx on December 10, 2021).

12/ "Resurgence of SARS-CoV-2 Infection in a Highly Vaccinated healthcare System Workforce," The New England Journal of Medicine (accessed online at https://www.nejm.org/doi/full/10.1056/NEJMc2112981 on December 14, 2021).

13/ Effectiveness of masking and physical distancing varies across studies using different types of masks and other varying study controls. For complete details, see Howard, et al., "An evidence review of face masks against COVID-19," Proceedings of the National Academy of Sciences of the United States of America, 2021 Vol. 18, No. 4 (January 11, 2021) (accessed online at https://doi.org/10.1073/pnas.2014564118 on December 10, 2021); John T. Brooks, MD & Jay C. Butler, MD, "Effectiveness of Mask Wearing to Control Community Spread of SARS-CoV-2," Journal of the American Medical Association, Vol. 325, No. 10 (March 9, 2021) (accessed online at https://jamanetwork.com/journals/jama/fullarticle/2776536 on December 10, 2021).

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The rule can be viewed at: https://www.regulations.gov/document/OSHA-2021-0007-0001

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