COVID-19 Vaccine Mandates

**BREAKING NEWS**
The Supreme Court has blocked the Biden Administration’s OSHA Vaccine or Test Mandate for Employers with 100+ employees.

The Supreme Court has allowed the Biden Administration’s Centers for Medicare and Medicaid Services (CMS) Vaccine Requirement to Be Enforced.

OSHA Mandate for Employers with 100+ Employees

The legal battle over this mandate has been a bit of a roller coaster. Yesterday, after hearing arguments last week, the Supreme Court (SCOTUS), in a 6-3 decision, blocked it. In one such argument, SCOTUS said:

“Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Is this mandate dead forever? There are some avenues for this to be revived, but currently that appears to be a long shot. If this changes, we will certainly let you know.

What to do now?

• While this mandate is no longer enforceable by OSHA, you may still implement it on your own if you believe it to be a valuable program for ensuring your businesses safety.
• Be sure you follow any state OSHA programs that may be applicable in your area regarding COVID, vaccines, health & safety, etc.
• Comply with any state-based vaccine mandates that have been issued in the previous months that are applicable to your business.

Centers for Medicare and Medicaid Services (CMS) Vaccine Requirement

Again, a roller coaster in terms of litigation with this mandate as well. Unlike the large employer requirement, SCOTUS agreed to allow this mandate to proceed. In their decision, SCOTUS said:

CMS’s “core mission . . . is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety,” and “ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: ‘first, do no harm.’”

As a reminder, the CMS requirement applies only to the following facilities:

• Ambulatory Surgical Centers (ASCs) (§ 416.51)
• Hospices (§ 418.60)
• Psychiatric residential treatment facilities (PRTFs) (§ 441.151)
• Programs of All-Inclusive Care 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 (LTC) Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes (§ 483.80)
• Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs-IID) (§ 483.430)
• Home Health Agencies (HHAs) (§ 484.70)
• Comprehensive Outpatient Rehabilitation Facilities (CORFs) (§§ 485.58 and 485.70)
• Critical Access Hospitals (CAHs) (§ 485.640)
• Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services (§ 485.725)
• Community Mental Health Centers (CMHCs) (§ 485.904)
• Home Infusion Therapy (HIT) suppliers (§ 486.525)
• Rural Health Clinics (RHCs)/Federally Qualified Health Centers (FQHCs) (§ 491.8)
• End-Stage Renal Disease (ESRD) Facilities (§ 494.30)

This IFC [interim final rule with comment period] directly applies only to the Medicare- and Medicaid-certified providers and suppliers listed above. It does not directly apply to other health care entities, such as physician offices, that are not regulated by CMS.

Note: This does not appear to be applicable to private dental practices such as general/family, orthodontists, pedodontists, etc.

What to do now?

• If you are covered by the CMS rule, you must ensure your workers meet the following: employees must receive their first dose of the COVID-19 vaccine by January 27^th and be fully vaccinated by February 28^th. NOTE: there is no testing alternative for this mandate.
• Additionally, employers must track employees’ vaccination statuses and develop vaccination policies that include medical and religious exemptions and accommodations.

For more information regarding the CMS mandate, click here.

We encourage you to contact a representative who is an expert in regulations under CMS for more details on how the this impacts you.

**CLARIFICATION: If you do not have 100 or more employees nationwide, this Alert is not applicable to your practice.**

On November 4th, Federal OSHA published its vaccine or test Emergency Temporary Standard (ETS). You may read the entire ETS by clicking here.

NOTE: Lawsuits in multiple states were immediately filed. By Saturday, November 6th, the Fifth Circuit Court of Appeals had stayed the ETS thereby temporarily blocking it. As a result, the ETS’ future is very much up in the air. There will be a lot of legal proceedings over the next few weeks and likely several ups and downs. Where this ultimately will land is unknown. We will keep you updated as we can. For now, plan as though it will take effect and be enforced.

Here are some key aspects of the ETS:

This Standard took effect immediately (i.e., 11/04/21).

Employers have until December 6, 2021 to comply with all requirements except testing unvaccinated workers. Compliance for testing unvaccinated workers is required by January 4, 2022.

The ETS will remain in effect for 6 months unless updated or replaced by a permanent standard.

Penalties: up to $13,653.00 per violation (more for willful or egregious failures to comply).

The ETS is applicable to all employers subject to Federal OSHA with 100+ employees, which is to be measured on a company-wide basis (i.e., across all U.S. locations). It does not apply to:

• Employers that are already covered by the Safer Federal Workforce Task Force COVID-19 vaccine mandate for federal contractors and subcontractors
• Those employers covered by the OSHA’s COVID-19 Healthcare Emergency Temporary Standard.

Note: Employers not covered by federal OSHA will need to rely on their state’s standards. States have 30-days to either adopt the federal ETS or issue an alternative standard that is the equivalent.

Here are the states not covered by federal OSHA: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.

Furthermore, the ETS does not apply to:

• Employees who do not report to a workplace where other individuals such as coworkers or customers are present
• Employees working from home 100% of the time
• Employees who work exclusively outdoors

Requirements:

1) Create a COVID-19 vaccination policy. Employers may choose one of two options for applying the ETS standard:
Develop, implement, and enforce a mandatory COVID-19 vaccination policy requiring employees to be fully vaccinated against COVID-19.
Develop, implement, and enforce a policy that allows employees to choose between being fully vaccinated or be tested at least weekly and wear a face covering.

2) Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

3) Employers must provide up to four (4) hours of paid time off for employees to receive each vaccination dose, including travel time, as well as reasonable time and paid sick leave to recover from side effects experienced from the vaccine doses. This must be paid at the employee’s regular rate of pay.

4) Employees are required to promptly notify employers when they receive a positive COVID-19 test or are otherwise diagnosed with COVID-19. Upon notification, employers must remove the employee from the workplace, regardless of vaccination status. These removed employees must remain out of the workplace until they meet CDC criteria for returning to work. If an employee does not provide documentation of a COVID-19 test result, the employer must keep that employee removed from the workplace until the employee provides a test result.

5) Employers must provide employees the following in a language and at a literacy level employees will understand: 1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; 2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

6) Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

7) By the end of the next business day after a request is made, employers must make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. In addition, by the end of the next business day after a request is made, employers are required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

Here’s a roadmap for preparing for the ETS:

• Develop a policy. OSHA provided 2 sample mandatory vaccine policies for employers to choose from. You may find them here and here.
• Educate employees. There is wealth of information on OSHA’s website here.
• Determine your employees’ vaccination status, obtain acceptable proof, and maintain records.
• Provide paid time off for any employee getting the vaccine, as noted above.
• Set up a system for tracking COVID-19 testing.
• Consider buying face coverings for those who are required to wear them.

Announcement Part 2

• All private employers subject to federal OSHA with 100 or more employees will need to require their employees to be vaccinated against COVID-19. If they continue to employ unvaccinated workers, those workers must be tested weekly.
  • All private employers subject to federal OSHA with 100 or more employees will be required to provide paid time off in order for workers to get vaccinated as well as recover from the vaccine if there are side effects.

While the announcement was made, no rule has been issued on the matter. The Emergency Temporary Standard (ETS) will be issued by the Occupational Health and Safety Administration (OSHA). It is likely this will come within the next few weeks as they are expected to act fast. Since no rule has been issued, it is currently not in effect, therefore, trying to immediately comply with this announcement may be ill-advised since the details are unknown. While we don’t know for certain how much time employers will have to comply, it is likely to be 75 days from the date the ETS is issued. Therefore, there is time to prepare and plan, and not make hasty decisions with no accurate information.

There are many, many questions, but until the ETS is issued, there are little to no answers. A few key things:

• This will be a federal OSHA ETS, which only covers 29 states. States not covered by federal OSHA, such as CA, TN, NC, and KY, will have to adopt the ETS, or create one that is just as effective within 15-30 days of when the ETS is issued. Therefore, the rules for employers in states not governed by federal OSHA may be different.

• The ETS will be in effect for 6 months once issued. After 6 months it must be replaced by a permanent OSHA standard which requires a more formal rulemaking process.

• We do not know who will be required to pay for the testing if unvaccinated workers continue to be employed.

• We do not know if employers will be required to pay for their employees’ time to be tested.

• We do not know which type of test will be required.

• We do not know the requirements for determining the 100-employee threshold. Will it be per location or nationwide?

• We do not know which type of documentation will be required, or for how long it will need to be kept.

• We do not know the impact on remote workers.

Please know that we will provide updated information on all of this and more as soon as we can. Please keep an eye out for future Alerts. We will do everything we can to ensure you are prepared for this rule, and we appreciate your patience as we all wait for these rules to be officially issued and can, therefore, begin the process of compliance.

Announcement Part 1

• The Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement.

According to the CMS.gov website, “The Biden-Harris Administration will require COVID-19 vaccination of staff within all Medicare and Medicaid-certified facilities to protect both them and patients from the virus and its more contagious Delta variant.”

Click here to link to CMS.gov to review a more detailed list of the facilities under this announcement.

CMS is developing an Interim Final Rule with Comment Period that will be issued in October.

“CMS expects certified Medicare and Medicaid facilities to act in the best interest of patients and staff by complying with new COVID-19 vaccination requirements. Health care workers employed in these facilities who are not currently vaccinated are urged to begin the process immediately. Facilities are urged to use all available resources to support employee vaccinations, including employee education and clinics, as they work to meet new federal requirements.”

Until CMS issues their Interim Final Rule in October, this is all we know. For example, we do not know if this requires any employee to be let go who is not vaccinated.

While it is prudent to announce this upcoming new requirement to your staff, if this rule will be applicable to you, and begin preparing for it, we do not advise terminating any staff. Educate your employees, encourage and/or incentivize the vaccine, and do what you can to get as many of your staff vaccinated, and once the Rule is issued, we’ll know more what to do for those who remain unvaccinated.