OSHA Withdraws Temporary COVID-19 Vaccine-or-Testing Rule

  • Agency leaves door open to future permanent standard on COVID vaccination-or-testing

The Occupational Safety and Health Administration (OSHA) is withdrawing its emergency temporary standard (ETS) to require all large businesses in the United States to implement a COVID-19 vaccine-or-weekly-testing policy for employees by February 9, 2022.

However, OSHA has decided to propose that the make the temporary standard in to a permanent standard.

“Notwithstanding the withdrawal of the [ETS], OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace,” the agency said.

OSHA originally published the ETS on November 5, 2021 in the Federal Register and accepted comments through January 19, 2022. However, on January 13, 2022, the United States Supreme Court struck down the ETS, while upholding the narrower Centers for Medicare & Medicaid vaccination rule for health care workers. (See January 13 NAHC Report.)

“Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard,” wrote the agency, “OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule.”

OSHA’s announcement did not indicate when it will finalize a permanent rule, but Labor Secretary Marty Walsh told Politico on Monday that the “Supreme Court opened up a couple of potential different areas which we’ll explore. They talked about assembly line, medical — there’s like three or four general areas that you could read into. We could do something there.”

Previously, OSHA has indicated a number of possibilities for a final rule, such as whether to cover employers with fewer than 100 employees, whether masking should also be required, whether the standard should be strictly vaccination, and others.

“We need clarity on this issue and NAHC strongly encourages both Congress and the Administration to quickly reach a conclusion so that affected health care businesses can focus on providing care,” said NAHC President William A. Dombi. “Infection control in patient care and staffing is an essential responsibility in all of health care. Home care is committed to protecting its patients and its staff from Covid-19.“

CMS Issues Guidance on the Vaccine Mandate for all States

The Centers for Medicare & Medicaid Services CMS), Quality, Safety & Oversight (QSO)Group has issued three separate guidance memorandums  (QSO-22-07,QSO-22-09, and QSO-22-11) to address compliance with the CMS Omnibus COVID-19 Health Care Staff Vaccination, Interim Final Rule. Three  memos have been issued to accommodate the varying Appeals Court and United States  Supreme Court decisions reading whether CMS could go forward with a vaccine mandate for Medicare and Medicaid certified providers in certain  states. Presently, all 50 states and territories are subject to the CMS vaccine mandate rule for staff.

CMS has ceated an table with state-by-state implementation deadlines for the health care staff vaccination rule. The table is HERE and NAHC strongly recommends you consult this table to see when deadlines apply to your agency. 

All three memos contain the same requirements for compliance with a phased-in approach that follows 30-day, 60-day and 90-day compliance and enforcement time frames from the date that the individual memos were issued. Therefore, there are different compliance dates for states, depending on which memo applies.

The first memo (QSO-22-07) issued on December 28, 2021, applies to all states except the following:

Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming .

The 30-day compliance and enforcement time frame for all other states is January 27, 2022. The 60-day compliance and enforcement date is February 28, 2022, and 90-day enforcement date is March 28, 2022

The second memo (QSO-22-09)  issued on January 14, 2022 applies to all of the above states except Texas.

The 30-day compliance and enforcement time frame for these states is February 14, 2022. The 60-day compliance and enforcement date is March 15, 2022, and 90-day  enforcement date is April 14, 2022.

The third and final memo(QSO-22-11) issued on January 20, 2022 applies to the state of Texas.

The 30-day compliance and enforcement time frame for Texas is February 22, 2022,

The 60-day compliance and enforcement date is March 21, 2022, and 90-day enforcement date is April 20, 2022.

In the memos, CMS states that if the 30 days or 60 days falls on a weekend or designated federal holiday, CMS will use enforcement discretion to initiate compliance assessments the next business day. Therefore, some of these days are not exactly 30-days or 60- days from the issuance of the respective memo.

CMS has also updated the FAQ document for the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule. External FAQ IFC-6 – 1.21.22 (cms.gov)

OSHA Withdraws Temporary COVID-19 Vaccine-or-Testing Rule

  • Agency leaves door open to future permanent standard on COVID vaccination-or-testing

The Occupational Safety and Health Administration (OSHA) is withdrawing its emergency temporary standard (ETS) to require all large businesses in the United States to implement a COVID-19 vaccine-or-weekly-testing policy for employees by February 9, 2022.

However, OSHA has decided to propose that the make the temporary standard in to a permanent standard.

“Notwithstanding the withdrawal of the [ETS], OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace,” the agency said.

OSHA originally published the ETS on November 5, 2021 in the Federal Register and accepted comments through January 19, 2022. However, on January 13, 2022, the United States Supreme Court struck down the ETS, while upholding the narrower Centers for Medicare & Medicaid vaccination rule for health care workers. (See January 13 NAHC Report.)

“Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard,” wrote the agency, “OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule.”

OSHA’s announcement did not indicate when it will finalize a permanent rule, but Labor Secretary Marty Walsh told Politico on Monday that the “Supreme Court opened up a couple of potential different areas which we’ll explore. They talked about assembly line, medical — there’s like three or four general areas that you could read into. We could do something there.”

Previously, OSHA has indicated a number of possibilities for a final rule, such as whether to cover employers with fewer than 100 employees, whether masking should also be required, whether the standard should be strictly vaccination, and others.

“We need clarity on this issue and NAHC strongly encourages both Congress and the Administration to quickly reach a conclusion so that affected health care businesses can focus on providing care,” said NAHC President William A. Dombi. “Infection control in patient care and staffing is an essential responsibility in all of health care. Home care is committed to protecting its patients and its staff from Covid-19.“

CMS Issues Guidance on the Vaccine Mandate for all States

The Centers for Medicare & Medicaid Services CMS), Quality, Safety & Oversight (QSO)Group has issued three separate guidance memorandums  (QSO-22-07,QSO-22-09, and QSO-22-11) to address compliance with the CMS Omnibus COVID-19 Health Care Staff Vaccination, Interim Final Rule. Three  memos have been issued to accommodate the varying Appeals Court and United States  Supreme Court decisions reading whether CMS could go forward with a vaccine mandate for Medicare and Medicaid certified providers in certain  states. Presently, all 50 states and territories are subject to the CMS vaccine mandate rule for staff.

All three memos contain the same requirements for compliance with a phased-in approach that follows 30-day, 60-day and 90-day compliance and enforcement time frames from the date that the individual memos were issued. Therefore, there are different compliance dates for states, depending on which memo applies.

The first memo (QSO-22-07) issued on December 28, 2021, applies to all states except the following:

Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming .

The 30-day compliance and enforcement time frame for all other states is January 27, 2022. The 60-day compliance and enforcement date is February 28, 2022, and 90-day enforcement date is March 28, 2022

The second memo (QSO-22-09)  issued on January 14, 2022 applies to all of the above states except Texas.

The 30-day compliance and enforcement time frame for these states is February 14, 2022. The 60-day compliance and enforcement date is March 15, 2022, and 90-day  enforcement date is April 14, 2022.

The third and final memo(QSO-22-11) issued on January 20, 2022 applies to the state of Texas.

The 30-day compliance and enforcement time frame for Texas is February 22, 2022,

The 60-day compliance and enforcement date is March 21, 2022, and 90-day enforcement date is April 20, 2022.

In the memos, CMS states that if the 30 days or 60 days falls on a weekend or designated federal holiday, CMS will use enforcement discretion to initiate compliance assessments the next business day. Therefore, some of these days are not exactly 30-days or 60- days from the issuance of the respective memo.

CMS has also updated the FAQ document for the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule. External FAQ IFC-6 – 1.21.22 (cms.gov)

OSHA Withdraws Temporary COVID-19 Vaccine-or-Testing Rule

Agency leaves door open to future permanent standard on COVID vaccination-or-testing The Occupational Safety and Health Administration (OSHA) is withdrawing its emergency temporary standard (ETS) to require all large businesses in the United States to implement a COVID-19 vaccine-or-weekly-testing policy for employees by February 9, 2022. However, OSHA has decided to propose that the make…

CMS Issues Guidance on the Vaccine Mandate for all States

The Centers for Medicare & Medicaid Services CMS), Quality, Safety & Oversight (QSO)Group has issued three separate guidance memorandums  (QSO-22-07,QSO-22-09, and QSO-22-11) to address compliance with the CMS Omnibus COVID-19 Health Care Staff Vaccination, Interim Final Rule. Three  memos have been issued to accommodate the varying Appeals Court and United States  Supreme Court decisions reading…

Supreme Court Blocks Biden’s Covid Rule for Biz, Upholds Health Worker Mandate

The Supreme Court handed down a split decision on two Biden administration workplace rules to stop the spread of the novel coronavirus COVID-19, blocking an OSHA rule requiring businesses with at least 100 employees to compel their workers to get vaccinated or wear masks and test negative at least once per week, but upholding a separate rule from the Centers for Medicare & Medicaid Services (CMS) requiring vaccination for about 20 million health care workers.

The OSHA rule would have covered about 80 million workers and administration estimated it would save about 6500 lives in six months.

“Today’s decisions from the U.S. Supreme Court brings home care a step closer to the essential clarity that is needed to determine what is required for compliance,” said NAHC President William A. Dombi in response to the rulings. “The OSHA rule is blocked from implementation and enforcement for the moment. The CMS rule can full take effect for the moment. Both cases return to the lower courts for further adjudication. The Administration has further options option to it. We strongly encourage both Congress and the Administration to quickly reach a conclusion so that affected health care businesses can focus on providing care. Infection control in patient care and staffing is an essential responsibility in all of health care. Home care is committed to protecting its patients and its staff from Covid-19.“

The decision once again laid bare the sharp ideological differences that exist on the court.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” wrote the court’s six-member conservative majority. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

The court’s three liberal justice dissented fiercely, writing that the majority was replacing OSHA’s expertise with its own, which lacks the necessary knowledge in public health.

“In the face of a still-raging pandemic,” wrote the dissent, “this court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this court… usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

NAHC has prepared bullet points to help you understand what these rulings mean for home care and hospice.

OSHA Rule

  • Court majority (6-3) finds that OSHA does not have the authority to issue a broad-based rule that is not specifically focused on occupational hazard affecting workers;
  • Majority views the OSHA rule as more a “public health” action rather than an occupational health one. OSHA does not have public health regulatory authority;
  • OSHA can regulate worker safety “where the virus poses a special danger” because of the employees job functions or workplace. Examples include where the employee is working with the virus or working in a crowded environment;
  • While the Court’s action stops the OSHA rule in its current form, OSHA may consider refining the rule to target certain workers in certain workplaces. This clearly could include health care settings for those entities not subject to the CMS rule.  Such action is not likely to occur quickly but is a strong possibility;
  • States that had been on the fence with respect to employer mandates may now move forward given the limitation on federal power and the Courts direct recognition that states have such power;
  • While the Court suggested that Congress might have the power to enact similar requirements to those under the OSHA rule, it is highly unlikely that such would pass in the current Congress. Earlier, a majority of the Senate opposed the OSHA rule;
  • NAHC recommends that home care companies return to focus on the expired OSHA Healthcare ETS as it may be the next generation of OSHA action as it is more targeted to a specific workplace hazard; and
  • While the OSHA case has been returned to the lower court for further adjudication, it can be expected that OSHA will ultimately lose on the existing rule. A new, targeted rule remains possible with the likelihood that new litigation will follow.

The OSHA rule was originally blocked by lower courts, but a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit reversed the lower court rulings, calling the rule “an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our health care system to its knees, and cost hundreds of thousands of workers their jobs.”

The Supreme Court ruling earlier today reverses the Sixth Circuit Court of Appeals decision.

CMS Rule

  • Court majority (5-4) finds clear authority for CMS to require measures, including vaccines, to protect patients and regulate provider staff qualifications
  • “Health and safety” rulemaking authority provides CMS with the ability to address a broad range of issues within its expertise
  • Majority concludes that such authority is inferred for all providers subject to conditions of participation even without express language. e.g. home infusion providers
    • Court explains that there is a provision in the rule that permits severing parts of the rule that are deemed outside of CMS authority
    • This may create an issue for the lower courts to address as the SCt sent the case back for continuing review since it was acting only on the issue as to whether a preliminary stay of the rule should continue
  • NAHC expects CMS will move quickly to bring to rule into enforcement consistent with the recent guidance issued that is applicable to the states where the injunction was not in place
  • NAHC expects that CMS will prevail ultimately in the validity of the rule. As such, we highly recommend that affected providers move forward to full compliance.

CMS released the following statement after the Supreme Court decision, setting compliance dates for the 24 states that had been subject to the injunction against the CMS rule.

As a result of today’s decision, health care providers subject to the Omnibus Health Care Staff Vaccination rule in the 24 states (Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming) covered by this decision will now need to establish plans and procedures to ensure their staff are vaccinated and to have their employees receive at least the first dose of a COVID-19 vaccine.

Today’s decision does not affect compliance timelines for providers in the District of Columbia, the territories, and the 25 states where the preliminary injunction was previously lifted. See the guidance released on December 28, 2021, for additional information.

Previously, two federal appeals courts halted enforcement of the CMS rule in 24 states, but it did go into effect in the remaining states.

Supreme Court Blocks Biden’s Covid Rule for Biz, Upholds Health Worker Mandate

The Supreme Court handed down a split decision on two Biden administration workplace rules to stop the spread of the novel coronavirus COVID-19, blocking an OSHA rule requiring businesses with at least 100 employees to compel their workers to get vaccinated or wear masks and test negative at least once per week, but upholding a separate rule from the Centers for Medicare & Medicaid Services (CMS) requiring vaccination for about 20 million health care workers.

The OSHA rule would have covered about 80 million workers and administration estimated it would save about 6500 lives in six months.

“Today’s decisions from the U.S. Supreme Court brings home care a step closer to the essential clarity that is needed to determine what is required for compliance,” said NAHC President William A. Dombi in response to the rulings. “The OSHA rule is blocked from implementation and enforcement for the moment. The CMS rule can full take effect for the moment. Both cases return to the lower courts for further adjudication. The Administration has further options option to it. We strongly encourage both Congress and the Administration to quickly reach a conclusion so that affected health care businesses can focus on providing care. Infection control in patient care and staffing is an essential responsibility in all of health care. Home care is committed to protecting its patients and its staff from Covid-19.“

The decision once again laid bare the sharp ideological differences that exist on the court.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” wrote the court’s six-member conservative majority. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

The court’s three liberal justice dissented fiercely, writing that the majority was replacing OSHA’s expertise with its own, which lacks the necessary knowledge in public health.

“In the face of a still-raging pandemic,” wrote the dissent, “this court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this court… usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

NAHC has prepared bullet points to help you understand what these rulings mean for home care and hospice.

OSHA Rule

  • Court majority (6-3) finds that OSHA does not have the authority to issue a broad-based rule that is not specifically focused on occupational hazard affecting workers;
  • Majority views the OSHA rule as more a “public health” action rather than an occupational health one. OSHA does not have public health regulatory authority;
  • OSHA can regulate worker safety “where the virus poses a special danger” because of the employees job functions or workplace. Examples include where the employee is working with the virus or working in a crowded environment;
  • While the Court’s action stops the OSHA rule in its current form, OSHA may consider refining the rule to target certain workers in certain workplaces. This clearly could include health care settings for those entities not subject to the CMS rule.  Such action is not likely to occur quickly but is a strong possibility;
  • States that had been on the fence with respect to employer mandates may now move forward given the limitation on federal power and the Courts direct recognition that states have such power;
  • While the Court suggested that Congress might have the power to enact similar requirements to those under the OSHA rule, it is highly unlikely that such would pass in the current Congress. Earlier, a majority of the Senate opposed the OSHA rule;
  • NAHC recommends that home care companies return to focus on the expired OSHA Healthcare ETS as it may be the next generation of OSHA action as it is more targeted to a specific workplace hazard; and
  • While the OSHA case has been returned to the lower court for further adjudication, it can be expected that OSHA will ultimately lose on the existing rule. A new, targeted rule remains possible with the likelihood that new litigation will follow.

The OSHA rule was originally blocked by lower courts, but a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit reversed the lower court rulings, calling the rule “an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our health care system to its knees, and cost hundreds of thousands of workers their jobs.”

The Supreme Court ruling earlier today reverses the Sixth Circuit Court of Appeals decision.

CMS Rule

  • Court majority (5-4) finds clear authority for CMS to require measures, including vaccines, to protect patients and regulate provider staff qualifications
  • “Health and safety” rulemaking authority provides CMS with the ability to address a broad range of issues within its expertise
  • Majority concludes that such authority is inferred for all providers subject to conditions of participation even without express language. e.g. home infusion providers
    • Court explains that there is a provision in the rule that permits severing parts of the rule that are deemed outside of CMS authority
    • This may create an issue for the lower courts to address as the SCt sent the case back for continuing review since it was acting only on the issue as to whether a preliminary stay of the rule should continue
  • NAHC expects CMS will move quickly to bring to rule into enforcement consistent with the recent guidance issued that is applicable to the states where the injunction was not in place
  • NAHC expects that CMS will prevail ultimately in the validity of the rule. As such, we highly recommend that affected providers move forward to full compliance.

CMS released the following statement after the Supreme Court decision, setting compliance dates for the 24 states that had been subject to the injunction against the CMS rule.

As a result of today’s decision, health care providers subject to the Omnibus Health Care Staff Vaccination rule in the 24 states (Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming) covered by this decision will now need to establish plans and procedures to ensure their staff are vaccinated and to have their employees receive at least the first dose of a COVID-19 vaccine.

Today’s decision does not affect compliance timelines for providers in the District of Columbia, the territories, and the 25 states where the preliminary injunction was previously lifted. See the guidance released on December 28, 2021, for additional information.

Previously, two federal appeals courts halted enforcement of the CMS rule in 24 states, but it did go into effect in the remaining states.

Supreme Court Blocks Biden’s Covid Rule for Biz, Upholds Health Worker Mandate

The Supreme Court handed down a split decision on two Biden administration workplace rules to stop the spread of the novel coronavirus COVID-19, blocking an OSHA rule requiring businesses with at least 100 employees to compel their workers to get vaccinated or wear masks and test negative at least once per week, but upholding a…

OSHA’s Vaccination and Testing Mandate Reinstated

A federal appeals court on Friday reinstated the Biden administration’s coronavirus vaccination policy for large private businesses, reversing an earlier court ruling that had halted the mandate. The Occupational Safety and Health Administration’s (OSHA) COVID-19  Vaccination and Testing Emergency Temporary Standard (ETS) requires all employers with greater than 100 employees either ensure employees are vaccinated against COVID-19 or receive weekly testing.

OSHA has posted on their website the following message:

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

The original compliance date was 12/6/2021 for all provisions of the ETS except for the weekly testing requirement which was to take effect 1/4/2022. All employers subject to the OSHA Vaccination and Testing ETS will need to begin complying with the requirements by the revised dates.

All of the provisions in the ETS remain without change, including an exemption for employers that are required to comply with the OSHA Healthcare ETS.

The OSHA Healthcare ETS  applies to all certified home health and hospice agencies and to most non-certified agencies that provide care in the home. However, the OSHA Healthcare ETS,  does not apply to healthcare support services that are performed away from the healthcare setting, which for most providers, includes their administrative staff.

Because OSHA intends for there to be no gaps between the two COVID ETS, employees not subject to the Healthcare ETS are covered under the COVID-19 Vaccination and Testing  ETS.   Therefore, it will be necessary for employers with employees covered by the OSHA Healthcare ETS  to determine if they also have employees covered by OSHA Vaccination and Testing ETS.

Employers with greater than 100 employees will need to understand what is required to comply with the OSHA Vaccination and Testing ETS and which employees are subject to these mandates.

To further complicate matters, the OSHA Healthcare ETS is due to expire on 12/21/2021. It is unclear what OSHA intends for that ETS going forward.

Although opponents of the OSHA vaccine and testing mandate plan to proceeded to the United States Supreme Court, employers should be prepared to comply with the requirements by the revise compliance dates.

Presently, there is no change in the injunction on CMS’ rule for a vaccine mandate. CMS issued a suspension on enforcement of its vaccine mandate that is still in place.

OSHA has several  tools and resources on their Vaccination and Testing ETS website which includes; fact sheets, policy templates and an extensive FAQ document.

Additionally, a November 16, 2022, the National Association for Home Care & Hospice (NAHC) webinar reviewed the requirements of the two OSHA ETS’ and the CMS vaccine mandate rule, along with the application to home health, hospice, and home care providers. An FAQ document was developed from questions received during the webcast.

NAHC is watching  the developments with the OSHA ETS’ and the CMS vaccine mandate rule closely. We will update providers as we learn more.