We're here to partner with you and provide updated guidance on vaccine mandates as it becomes available. Below are the latest updates:
On Jan. 13, 2022, the U.S. Supreme Court released two decisions related to COVID-19 vaccination requirements.
OSHA COVID-19 Vaccination and Testing ETS
Status: Effectively blocked
The U.S. Supreme Court has issued an order temporarily blocking OSHA’s Emergency Temporary Standard (ETS) which required vaccinations or weekly testing for businesses with 100 or more employees. The court issued the stay pending disposition of the cases in the U.S. Court of Appeals for the Sixth Circuit, but the Supreme Court opinion sent a strong signal that it believed that OSHA lacked the authority to impose the ETS’s requirements.
CMS Interim Final Rule
Status: Permitted to proceed
In a separate opinion, the U.S. Supreme Court permitted the CMS Interim Final Rule to take effect. This requires a vaccine mandate for certain healthcare workers in nursing homes, hospitals, and other facilities that receive Medicare and Medicaid payments from the federal government. The Supreme Court decision is pending disposition of the cases in the U.S. Courts of Appeal for the Fifth Circuit and Eighth Circuit.
OSHA COVID-19 Vaccination and Testing ETS
• On Dec. 17, a federal appeals court reinstated OSHA's Emergency Temporary Standard (ETS), which requires employers with 100 or more employees to have their employees vaccinated against COVID-19 or be required to wear a face covering and undergo weekly testing. OSHA will begin enforcement on January 10, 2022 for all requirements under the ETS except the testing requirements which will not be enforced until February 9, 2022.
Note – Multiple petitions have been filed with the Supreme Court to reinstate the stay. It is difficult to predict the timing on this but we would expect to hear something during the first week of January. We will be closely monitoring this issue and will send updates as they become available.
There are also multiple challenges pending regarding the OSHA ETS and how it interacts with state laws around vaccines. Although the OSHA ETS states it preempts state law, this is being contested. We will continue to update you as these issues develop.
Read more from OSHA.
CMS Interim Final Rule
• On Nov. 5 the Centers for Medicaid and Medicare Services (CMS) issued a rule requiring various Medicare and Medicaid certified providers and suppliers to implement a workplace vaccine mandate if they want to remain in the Medicare/Medicaid programs. Subsequent court rulings on Nov. 29-30 combined to serve as a nationwide block of the rule.
• On Dec. 15, an appeals court partially lifted a nationwide block of the vaccination mandate for healthcare workers. See this update on where your state currently stands. The enjoined list also now includes Texas.
• On Dec. 28, CMS issued updated guidance that requires compliance of Phase I of the mandate by Jan. 27 and for Phase II by Feb. 28.
CMS Vaccination FAQ
OSHA COVID-19 Healthcare ETS
• On June 21, OSHA published its first Emergency Temporary Standard aimed at limiting the spread of COVID-19 in the workplace. This ETS applies only to the health-care sector.
• Nov. 30 – Challenge pending before the D.C. Circuit, ETS should expire in December, 2021, current OSHA “November Report” reflects the following language:
To assess the ongoing need for an Emergency Temporary Standard for healthcare and related industries, the Occupational Safety and Health Administration (OSHA) has reviewed the latest guidance, science and data on COVID-19 and has consulted with the Centers for Disease Control and Prevention (CDC) (through the National Institute for Occupational Safety and Health) (NIOSH)). OSHA has determined that the requirements of the healthcare ETS released on June 10, 2021, remain necessary to address the grave danger of COVID-19 in healthcare. OSHA will continue to monitor and assess the need for changes in the healthcare ETS each month.
• On Dec. 7, a U.S. district court in Georgia issued a preliminary injunction to halt enforcement of the vaccine mandate “in all covered contracts in any state or territory of the United States of America.” Note – If a federal contractor/subcontractor had a vaccine mandate in place and is still enforcing it, it now needs to comply with applicable state law. This is a preliminary injunction so the government may contest this order in the coming weeks.
View private employer COVID-19 vaccine mandates state map.
We're here to help you navigate through these changes. We will continue to keep you informed as we receive additional information. Clients, we encourage you to reach out to your HR Business Partner with any questions or concerns.
COVID-19 OSHA Recordkeeping and Reporting Requirements
OSHA requires employers to record work-related COVID-19 illnesses if the employer is required to keep records and the case meets record keeping requirements. Should you determine this to be the case, please contact the LandrumHR Risk team to assist you with this process. OSHA guidelines for determining work-relatedness can be found on their website (Enforcement Guidance for Recording Cases of Coronavirus Disease).
If a work-related COVID-19 illness results in an employee being hospitalized or in a fatality, the incident and must be reported to OSHA.
While a work-related COVID-19 illness may be recordable / reportable for OSHA, it will likely not be compensable under workers’ compensation insurance because it is considered a disease of life. The exception being that a COVID-19 illness could be compensable for workers considered occupationally exposed, for example healthcare workers treating patients with known or suspected COVID-19.
Please contact the Risk Management department at 850-476-5100 or email@example.com if you have any concerns or questions, our team is ready to assist!
On Nov. 6, the US Court of Appeals for the Fifth Circuit issued a temporary stay freezing the OSHA Emergency Temporary Standard requiring employers with 100 or more employees to ensure employees are fully vaccinated or provide weekly negative test results.
On Nov. 8, OSHA notified the Judicial Panel on Multidistrict Litigation of the 12 challenges to the OSHA ETS filed in the Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits. The panel is expected to hold a “multi-circuit lottery” on Nov. 16 to assign the consolidated cases to any one of those federal appeals courts.
While the outcome remains uncertain, employers should continue to work towards creating policies, drafting potential employee communications and establishing procedures for compliance with the OSHA ETS. There are currently no extensions to the original compliance dates, so employers should be ready to implement the ETS pending the outcome of the litigation.
Employers with over 100 employees: If you would like to begin the planning process for possible COVID-19 vaccine mandate protocols, we’ve created a PDF one-pager and COVID-19 Vaccination, Testing and Face Covering Policy Template with information and actions you should be thinking about to help you get started.
We will continue to follow this developing situation and provide information as it becomes available. Clients, please reach out to your HR Business Partner if you have any questions.
OSHA is still taking public opinion on a permanent rule for COVID-19 Vaccination and Testing. Make your voice heard by submitting your opinion.
All covered employers must ensure that their employees have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4th. After that, all covered employers must ensure that any employees who are not otherwise excluded and who have not received the necessary vaccines begin producing a verified negative test to their employer on at least a weekly basis.
On Nov. 4, the U.S. Department of Labor's Occupational Safety and Health Administration announced a new emergency temporary standard (ETS) to minimize the risk of COVID-19 transmission in the workplace.
The ETS establishes binding requirements for employers with 100 or more employees – firm or company-wide – and provides options for compliance. The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
Even if you are a covered employer there are exclusions for employees who:
Are subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors
Are in settings where any employee provides healthcare services or healthcare support services when subject to the requirements of Section 1910.502
Do not report to a workplace where other individuals such as coworkers or customers are present
Work from home
Work exclusively outdoors
The ETS also requires employers to do the following:
The ETS does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.
We are working directly with clients who meet the 100+ employee criteria. Stay tuned for additional guidance from LandrumHR, including an informational webinar next week.
OSHA ETS Resources
LandrumHR is following these developments closely and will keep you updated via this page and our COVID-19 Employer Resource Center as information becomes available. Clients, please be on the lookout for email updates and contact your HR Business Partner if you have questions as this issue develops.
For more information visit www.whitehouse.gov/covidplan/