OSHA Releases Emergency Temporary Standard on Vaccination and Testing
Note: On Saturday, November 6, the Fifth Circuit Court of Appeals placed a temporary hold on the OSHA Emergency Temporary Standard (ETS) requiring COVID vaccination or testing for employees of employers with 100 or more employees.
The current ruling is temporary, but we expect to learn soon whether it will be extended. We will continue to update as we get more information.
OSHA released its Emergency Temporary Standard (ETS) requiring COVID vaccination or testing for employees of employers with 100 or more employees. Employers must start following the ETS requirements by December 5. However, the testing requirements don’t apply until January 4, 2022. The ETS is extensive, and we'll be updating the information in the platform with additional details. We’ll also be following the anticipated legal challenges. Below are some of the highlights.
Interaction with Other Laws
OSHA states that its ETS trumps state or local requirements that limit an employer’s ability to require COVID vaccination, COVID testing, or face coverings. According to OSHA, such state and local bans are completely preempted (overruled), even for employers who aren’t subject to the OSHA ETS (i.e., those with fewer than 100 employees).
Overview
The ETS requires covered employers to choose between adopting a mandatory vaccination policy or adopting a policy allowing employees to choose to either get vaccinated or test weekly and wear a face covering indoors.
Covered employers must ensure that their employees have received two doses of Pfizer or Moderna or one dose of Johnson & Johnson by January 4. After that, all covered employers must ensure that employees who have not received the necessary shots produce a negative test on at least a weekly basis.
Testing
The ETS does not require employers to pay for the cost of the tests, although they may be required to do so by other laws.
Tests can’t be performed by the employee at home, unless an “authorized telehealth proctor” observes the employee take the test and reads the results.
Paid Time Off
Covered employers are also required to provide up to four hours of paid time off for employees to get vaccinated during work, including travel time. Employers cannot take this time out of an employee’s leave bank. The ETS doesn’t require employers to reimburse employees for transportation costs to get vaccinated, though another law might (for example, California requires employers to reimburse employees for mileage).
Employers must also provide two days of paid sick time to recover from vaccine-related side effects. Employers can require employees to use their accrued sick leave or PTO (but not vacation).
Employer Coverage
The OSHA ETS applies to employers with 100 or more employees. All employees in the United States are counted, including part-time and fully remote employees. Once an employer hits the 100-employee mark (on or after November 5), they remain subject to the ETS for as long as it remains in effect. Employers may be completely or partially exempt from this ETS, for example, if they are subject to the federal contractor Executive Order or the COVID healthcare ETS.
Employee Coverage
Generally, employees of a covered employer are subject to the ETS requirement to either get vaccinated or test weekly and wear a face covering inside. The following employees are exempt:
Employees who work entirely alone (there are no other employees, clients, or customers present during their workday)
Employees who work from home
Employees who work exclusively outdoors
It’s possible (though not likely) for an employer to be “covered” under the ETS and for all of its employees to be exempt from the ETS requirement to get vaccinated or test weekly.
Policy
Employers are required to have a policy either requiring all employees to be vaccinated (subject to medical or religious exemptions) or allowing employees to choose between getting vaccinated or testing for COVID weekly and wearing a face covering indoors. Employers may choose to have one policy for certain workers and the other for different workers. As with any employment decision, the distinction should be based on a legitimate business reason.
Your policy must be written and have specific information set out in the ETS. Templates are available on the OSHA ETS resource page under Implementation.
Additional Information
The ETS is lengthy, with additional requirements and details. Further information will be available on our platform. We recommend that you review the resources provided by OSHA. In particular, the 28-minute webinar is very informative and should provide you with the information you need right now.
Vaccine Mandates for Staff of Medicare and Medicaid Providers and Suppliers
On Nov. 4, 2021, CMS published an Omnibus COVID-19 Health Care Staff Vaccination interim final rule, requiring Medicare providers and some suppliers to ensure their staff are fully vaccinated by January 4, 2022 (CMS Mandate). The CMS Mandate covers a wide swath of personnel at almost all Medicare providers and some suppliers—all of which are subject to the Medicare certification requirements
What is Required
By December 5, 2021, all providers and suppliers subject to this rule must have:
A process or plan for vaccinating all eligible staff.
1st Dose or One Dose Vaccine by Dec. 5, 2021.
Full vaccination by January 4, 2022.
A process or plan for providing exemptions and accommodations for those who are exempt.
A process or plan for tracking and documenting staff vaccinations.
Tracking can be in any form, including use of NHSN vaccination tracking tool available to the public.
Proof of vaccine documentation may be the CDC vaccination record card, documentation from a health care provider or electronic health record or the State immunization information system record. All records must be kept confidential and stored separately from an employer’s personnel files.
How Will CMS Enforce this Mandate?
The CMS Mandate does not establish any additional reporting requirements, even for facilities subject to quality reporting measures.
Enforcement will be based on Conditions of Participation/Conditions for Coverage, so the CMS Mandate will be enforced as other COPs/CfCs through the survey process, inclusive of accreditation surveys.
Deficiencies, Plan of Correction, possible CMPs, possible termination.
The CMS Mandate pre-empts any state law.
CMS expects to issue interpretive survey guidelines, along with training for state surveyors (record review, staff interviews, how to cite noncompliance).
Who is Included in “Staff” Required to be Vaccinated?
Staff are employees of the provider or supplier, licensed practitioners, students, trainees, and volunteers, and any individuals who provide care, treatment, or other services for the provider or supplier under contract or other arrangement.
• Staff includes non-clinical personnel such as administrative personnel, housekeeping, food service and volunteer and other fiduciary board members.
• Staff includes any individuals who perform their duties at any site of care, including independent contractors (i.e. medical staff).
The CMS Mandate does not apply to staff who exclusively provide telehealth, telemedicine, or support services who do not have any direct contact with patients and other staff and work outside the site of care.
The CMS Mandate does not apply to individual vendors who provide infrequent and ad-hoc non-health care services (for instance a vendor brought in to inspect an elevator, delivery or other repair personnel).
Who is Exempt?
Each provider or supplier must offer “a process by which staff may request an exemption from the staff COVID-19 vaccination requirements based on the applicable Federal law.”
Exemptions may be granted due to religious beliefs or under applicable Federal Law.
If a medical exemption is requested, then the provider or supplier must obtain documentation that confirms a clinical contraindication to the COVID 19 vaccines. This must be signed and dated by a clinical practitioner who is acting within their state scope of practice, but it may not be signed by the person seeking the exemption. The documentation must set forth recognized clinical reasons for the contraindications and a statement from the practitioner recommending that the staff member be exempted.
What is Fully Vaccinated?
Johnson & Johnson = 14 days after receipt of vaccine.
Pfizer-BioNTech or Moderna = 14 days after receipt of the second of the two-dose primary vaccination series. No booster shots are required to comply with the CMS Mandate.
In the event a staff member receives a vaccine outside the U.S. that is neither FDA approved nor authorized, CMS defers to the CDC guidance which generally advises that individuals who have completed a vaccine series listed for emergency use by the WHO should not also obtain another FDA-approved or authorized series in the U.S.
How Does the CMS Mandate Work with the OSHA and other Federal Vaccine Requirements
Facilities subject to the CMS Mandate must comply with the CMS rule first. If a health care provider or supplier is not subject to the CMS Mandate, then the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors or the OSHA COVID-19 Healthcare Emergency Temporary Standard applies. If none of the above rules apply (CMS Mandate, Executive Order or OSHA ETS), then employers with more than 100 employees are subject to the OSHA Employer Emergency Temporary Standard.
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