Originally published 11/21/08. Updated 12/01/21.
As expected, OSHA’s Temporary Emergency Standard (ETS) was the subject of an immediate legal challenge, and on Saturday the Fifth Circuit Court of Appeals issued a suspension preventing the entry into force of the law. Below, we outline the main requirements and dates of the OSHA ETS, which requires employers with 100 or more employees to have a vaccine or testing policy.
The Fifth Circuit cited “serious statutory and constitutional issues” with the ETS and temporarily granted a stay while the parties set out their arguments on a permanent injunction. The ruling certainly has an impact on the Fifth Circuit (Texas, Louisiana and Mississippi), but the court is not determining whether the suspension has an impact nationwide. This can be clarified as soon as the case moves forward within a tight deadline. Regardless, legal challenges are ongoing in several other circuits, and so the likelihood of OSHA ETS coming into effect in any circuit becomes increasingly unlikely.
Even if it becomes less likely that OSHA ETS will come into effect, there are still some steps that employers need to take to plan for implementation so that they are not completely caught off guard by unexpected litigation developments. For example, employers should update data on the vaccination rate among employees, to help inform decisions about whether to offer the test generally or only as a reasonable accommodation, and start working on it. a policy document that will go into effect on December 5, 2021, unless the ETS remains blocked.
Background to the Emergency Temporary Standard Mandate for Vaccines and OSHA Testing
The ETS vaccine mandate rule requires covered businesses with 100 or more employees across the company to require employees to receive COVID-19 vaccination, or wear a mask and test for COVID-19 once per week. As of December 5, 2021, all covered employers must ensure that all unvaccinated workers begin wearing masks, and as of January 4, 2022, all unvaccinated employees must provide a negative COVID-19 test on a weekly basis.
The important points:
1. Covered employers must develop, implement and enforce a written COVID-19 mandatory vaccination policy as of December 5, 2021.
2. As the ETS aims to encourage employees to get vaccinated, the ETS requires employers to give employees up to four hours of paid leave to get vaccinated if employees choose to do so during working hours. working (if necessary).
3. The ETS does not require that employees working remotely, at home, or exclusively outdoors be vaccinated.
4. Employers are required to provide reasonable accommodations for medical or religious exemptions, but accommodations need not be provided if they would cause undue hardship to the business.
5. The ETS does not require employers to pay the cost of weekly testing. However, when an employee qualifies for an exemption under the ADA or Title VII, employers may be required to cover the cost of the tests as a reasonable accommodation. Employers should also be aware that requiring employees to pay for their own tests may violate state law and / or the FLSA minimum wage laws.
6. Acceptable COVID-19 tests are tests approved or authorized, including the United States Food and Drug Administration (FDA) Emergency Use Clearance (EUA), to detect a current infection with the virus. The test should be administered according to authorized instructions.
6.1. Examples of acceptable tests:
6.1.1. Tests administered by a laboratory;
6.1.2. Performed in a doctor’s office or emergency care facility; Where
6.1.3. Self-administered tests that are performed or observed by an employer or telehealth supervisor.
7. Employers must immediately remove employees who test positive for COVID-19 from the workplace. ETS does not require employers to provide paid time for the move.
8. Fully vaccinated means a person’s status two weeks after completing the primary vaccination course with either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by January 4, 2022.
9. Proof of vaccination must be kept in the employee’s medical file (29 CFR 19.10.1020) while the ETS is in effect.
CMS emergency regulations requiring COVID-19 vaccination for health workers
An emergency regulation released Nov. 4 by the Centers for Medicare & Medicaid Services (CMS) will require certain certified Medicare and Medicaid providers (see list below) to establish a policy ensuring that all eligible personnel receive the first dose or one dose of a COVID -19 vaccine before providing care or other services by December 5, 2021. All eligible personnel must have received the necessary vaccines to be fully immunized – either two doses of Pfizer or Moderna or one dose Johnson & Johnson – by January 4, 2022. CMS specifically refused to allow daily or weekly testing in lieu of vaccination. However, the emergency regulations allow exemptions based on recognized medical conditions or religious beliefs. CMS has declared its intention to continue reviewing the scientific evidence and stakeholder comments on this issue during the comment period on the Interim Final Rule. These CMS requirements are in addition to the requirements also issued by OSHA that apply to large employers (100+); these CMS requirements will apply even if a court suspends implementation of OSHA rules.
*** On November 29, 2021, a preliminary injunction was granted to bar the implementation of the Interim Final Rule in ten states. The next day, November 30, 2021, a preliminary injunction from the US District Court for the Western District of Louisiana prevented CMS from implementing CMS’s immunization mandate nationwide.
Only the following Medicare and Medicaid certified providers and providers are subject to the CMS Interim Final Rule:
- Ambulatory Surgery Centers (CSA) (§ 416.51)
- Hospices (§ 418.60)
- Psychiatric accommodation establishments (PRTF) (§ 441.151)
- All Inclusive Care Programs for the Elderly (PACE) (§ 460.74)
- Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long-term care hospitals, children’s hospitals, transplant centers, cancer hospitals and rehabilitation hospitals / inpatient rehabilitation facilities) (§ 482.42)
- Long-term care facilities (LTC), including qualified nursing homes (SNF) and nursing homes (NF), generally referred to as nursing homes (§ 483.80)
- Intermediate Care Establishments for People with Intellectual Disabilities (ICF-IID) (§ 483.430)
- Home Health Agencies (HHA) (§ 484.70)
- Complete outpatient rehabilitation centers (CORF) (§§ 485.58 and 485.70)
- Critical Access Hospitals (CAH) (§ 485.640)
- Clinics, rehabilitation organizations and public health organizations as providers of ambulatory physiotherapy and speech therapy services (§ 485.725)
- Community mental health centers (CMHC) (§ 485.904)
- Home infusion therapy (HIT) providers (§ 486.525)
- Rural Health Clinics (CHR) / Federally Approved Health Centers (FQHC) (§ 491.8)
- End-stage renal disease (ESRD) facilities (§ 494.30)
Next to each type of provider above, in parentheses, are the new immunization requirements in the Conditions of Participation, Conditions of Coverage, or Requirements for Participation located under Title 42 of the Code of Federal Regulations (CFR). CMS will ensure these requirements are met through established investigation and enforcement processes. If a supplier or supplier does not meet the requirements, they will be cited by an expert as non-compliant and given the opportunity to return to compliance before further action is taken.