UPDATE! Current Status of the Federal Vaccine Mandates

The status of the COVID-19 vaccine mandates from the Centers for Medicare & Medicaid Services (CMS) and the Occupational Safety and Health Administration (OSHA) vaccine mandates continue to evolve with extensive ongoing litigation and policy adjustments by the respective federal agencies. NAHC’s outside employment law counsel, Polsinelli, has prepared a detailed memorandum setting forth the status of the mandate rules and policy.

It looks like that the ultimate outcome will lie in the hands of the U.S. Supreme Court in the near term. The Court has ordered expedited briefing on the emergency petitions pending before the Court following several Court of Appeals rulings.  That generally means we may see some preliminary decisions from the Court early in 2022.

Meanwhile, NAHC continues to advise members to be prepared for implementation and enforcement of the CMS and OSHA requirements, although holding off on termination or suspension of staff that are not compliant. Also, it is essential that you keep in mind state and local requirements relative to a vaccine mandate or other infection control measures.

We urge you to read the entire memo.

From Polsinelli

Authors: Angelo Spinola & Will Vail

On November 4, 2021, the Biden Administration made three vaccine mandate announcements. Since then, there has been robust litigation bringing these mandates into question. This updated memo will detail these announcements, offer ideas on how to determine their impact (if any) on your business and tell you about some solutions we have created.

One of the announcements came from the Occupational Safety and Health Administration (OSHA). It announced a new Emergency Temporary Standard (ETS) that gives “large” employers the option of requiring vaccinations or allowing employees to test weekly for COVID-19. The Centers for Medicare & Medicaid Services (CMS) also simultaneously issued an Interim Final Rule that requires covered providers to implement a mandatory vaccination policy for “staff” to keep safe those who are receiving care. And finally, the Biden Administration pushed back the compliance date for federal contractors to January 18, 2022 (meaning the second of two shots would need to be administered by January 4, 2022).

Read the entire memo.

UPDATE! Current Status of the Federal Vaccine Mandates

The status of the COVID-19 vaccine mandates from the Centers for Medicare & Medicaid Services (CMS) and the Occupational Safety and Health Administration (OSHA) vaccine mandates continue to evolve with extensive ongoing litigation and policy adjustments by the respective federal agencies. NAHC’s outside employment law counsel, Polsinelli, has prepared a detailed memorandum setting forth the…

OSHA Issues Mandatory COVID-19 Vaccination Emergency Temporary Standard

The Occupational Safety and Health Administration (OSHA) has issued the much anticipated COVID-19 vaccine mandate emergency temporary standards (ETS) for all employers.

This ETS applies to all employers with a total of 100 or more employees at any time this ETS is in effect.

However, the requirements of this ETS do not apply to:

  • workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Contractor Guidance);
  • settings where any employee provides healthcare services or healthcare support services when subject to the requirements of 29 CFR 1910.502 (i.e., the Healthcare ETS).
  • employees of covered employers:(1) who do not report to a workplace where other individuals, such as coworkers or customers, are present; or (2) while working from home; or who work exclusively outdoors.

Based on this scope, employers in nearly every sector are expected to be covered by this ETS.

Under this standard, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

The ETS requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

The ETS also requires employers to do the following:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes
  • Report COVID-19 Fatalities and In-Patient Hospitalizations to OSHA.

The emergency temporary standard 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.

The ETS is effective upon publication in the Federal Register which is planned for 11/5/2021.

Additionally, Compliance dates are as follows:

(i) Employers must comply with all requirements of this section, except for requirements in paragraph (g) of this section, 30 days after publication in the Federal Register.

(ii) Employers must comply with the requirements of this section in paragraph (g) 60 days after publication in the Federal Register but employees who have completed the entire primary vaccination by that date do not have to be tested, even if they have not yet completed the 2-week waiting period.

Paragraph (g) sets out the COVID-19 testing requirements for employees who are not vaccinated.

OSHA is seeking comments on the ETS and requests information on specific areas outline under the comments section in the ETS. Comments are due 30 days after publication in the Federal Register.

The National Association for Home Care & Hospice will continue an analysis of the OSHA ETS and provide additional information as it becomes available.

NAHC Comment on Rules Issued by CMS & Dept of Labor

“We have long supported Covid-19 vaccination of home care staff as a public health responsibility, stated William A. Dombi, President of the National Association for Home Care & Hospice. “Patients served in home care are highly vulnerable to serious complications from Covid and vaccines are one crucial way of protecting them and others who can come in contact with home care staff.” he added.

“The rules issued today represent the difficult and complex outcome of efforts to address an extended pandemic that has taken many lives in this country, including those on the frontlines of caring for Covid infected patients in their homes. Home care providers have provided care to hundreds of thousands of patients with Covid and millions more throughout the pandemic with a keen focus on infection control, Dombi stated.

“With respect to the rules, we appreciate that DoL and CMS took thoughtful steps in setting compliance standards, deadlines, and exemptions. We look forward to ongoing clarifications and guidance. Still, we remain concerned that the rules divide home care providers into two categories, those subject to the mandate and those that are not because of size or relationship to Medicare and Medicaid. This may lead to staff separations and some access to care limitations. Nonetheless, the home care community remains committed to protecting its patients and staff.”

OSHA Issues Mandatory COVID-19 Vaccination Emergency Temporary Standard

The Occupational Safety and Health Administration (OSHA) has issued the much anticipated COVID-19 vaccine mandate emergency temporary standards (ETS) for all employers. This ETS applies to all employers with a total of 100 or more employees at any time this ETS is in effect. However, the requirements of this ETS do not apply to: workplaces…

NAHC Submits Comments and Develops FAQs on the OSHA COVID ETS

Read this NAHC FAQ on OSHA COVID Emergency Temporary Standards FAQ addresses questions from NAHC members The National Association for Home Care & Hospice (NAHC) submitted comments on the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standards (ETS) requesting clarification on the applicability of the standards to non-medical home care provides, limitations and protections…

Resource for Action Steps to Comply with the OSHA COVID-19 Emergency Temporary Standard

In June 2021, the Occupational Safety and Health Administration (OSHA)  issued an emergency temporary standard (ETS) to protect health care workers from occupational exposure to COVID-19 in settings where people with COVID-19 are more than likely going to be present, including home-based care settings. (See this NAHC Report article for important information.)

Employers covered by the standard are required to develop and implement a COVID-19 plan to identify and control the potential COVID-19 hazards in the workplace.

In response to a number of questions, our partners at  Polsinelli have shared with us a Summary of Action Steps you as our members can reference in order to be in compliance with OSHA COVID-19 ETS. NAHC strongly urges you to look carefully at this valuable resource.

OSHA Issues Directives for COVID-19 Emergency Temporary Standards Inspections

The Occupational Safety and Health Administration (OSHA) has issued new Directives that establishes inspection procedures and enforcement policies for the COVID-19 Emergency Temporary Standard (ETS),

In response to the Presidential Executive Order on Protecting Worker Health and Safety, OSHA determined additional measures could be taken to prevent occupational exposures to SARSCoV-2 and COVID-19, and issued an ETS to protect health care workers from occupational exposure. (The ETS was published in the Federal Register on June 21, 2021.)

Related: You Can Still Watch the NAHC Webinar on OSHA’s Emergency Standards

During the period of the ETS, covered health care employers must develop and implement a COVID-19 plan to identify and control COVID-19 hazards in the workplace. As part of their COVID-19 plan, these employers must address and implement various requirements to reduce transmission of COVID-19 in their workplaces, including patient and non-employee screening and management requirements, standard and transmission-based precautions, controls for aerosol-generating procedures, physical distancing, physical barriers, personal protective equipment (PPE), cleaning and disinfection, ventilation, employee health screening and medical management, vaccination, training, anti-retaliation, recordkeeping, and reporting.

This new Directive is designed to ensure uniformity in enforcing the ETS when addressing workplace exposures to SARS-CoV-2.

OSHA Issues Directives for COVID-19 Emergency Temporary Standards Inspections

The Occupational Safety and Health Administration (OSHA) has issued new Directives that establishes inspection procedures and enforcement policies for the COVID-19 Emergency Temporary Standard (ETS), In response to the Presidential Executive Order on Protecting Worker Health and Safety, OSHA determined additional measures could be taken to prevent occupational exposures to SARSCoV-2 and COVID-19, and issued…

You Can Still Watch the NAHC Webinar on OSHA’s Emergency Standards

The Occupational Safety and Health Administration (OSHA) published an emergency temporary standard (ETS) in the Federal Register on June 21, 2021 to protect healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present. (See NAHC Report for additional information.)

The ETS applies to all health care settings and outlines requirements for employers to ensure employees have a safe working environment. Covered entities must comply with the standards within 14 days (30 days for some) of the publication in the Federal Register.

This presentation reviewed all the standards and their application to the home care setting.

Faculty: Mary Carr, Vice President for Regulatory Affairs, NAHC

Price for NAHC members: Free (Register here)

New NAHC Webinar: How the New OSHA Emergency Temporary Standards Will Impact Your Agency

Thursday, July 1, 2021 3:00 – 4:00 PM Eastern REGISTER NOW The Occupational Safety and Health Administration (OSHA) published an emergency temporary standard (ETS) in the Federal Register on June 21, 2021 to protect healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present.…