COVID19 Vaccine Mandates
The Biden Administration has now issued three different COVID-19 vaccine mandates covering different employers, in all these orders cover approximately two-thirds of American Workers.
Federal Contractors – In early October it was announced that all covered contractors would be required to have employees fully vaccinated by December 8th. In concurrence with the announcement of the OSHA ETS, the effective date of the federal contractor vaccine mandate was originally pushed back to January 4, 2022. The effective date of the federal contractor vaccine mandate is now being reported to have already been pushed back to January 18th, by some sources. Under the federal contractor vaccine mandate, covered employers would be obligated to assess and determine allowances for medical conditions or a sincerely held religious belief. Although there was no COVID-19 testing option under the federal contractor vaccine mandate, it would require non-vaccinated employees to observe specific restrictions while working onsite at a federal contractor location or prior to working onsite at the agency of the contract . Although not fully clarified by the Biden Administration these additional requirements may still be in effect as of December 8th, such requirements would include that all employees (fully vaccinated or unvaccinated) in areas of high or substantial community transmission, must wear a mask indoors, except for limited exceptions. In areas of low or moderate community transmission, fully vaccinated people are not required to wear a mask. Individuals who are not fully vaccinated must wear a mask indoors and socially distance (six feet) as well as mask in certain outdoor settings regardless of the level of community transmission in the area.
OSHA Emergency Temporary Standard (ETS) - Large (100+ Employees) Employers – On November 4th OSHA released its guidance that all covered employers (Employers with 100+ employees) would be required to have their employee’s to be fully vaccinated by January 4, 2022 or require unvaccinated employees to produce a negative COVID-19 test on at least a weekly basis. Some other provisions that would go in effect on December 8th would include that employers:
Covered employers are defined as private sector employers with 100 or more employees at any time the ETS is in effect. Employers must count all employees, including part-time workers, remote workers, minors, and temporary employees in determining its threshold compliance responsibility, regardless of location.
Centers for Medicare & Medicaid Services (CMS) Requirements for Health Care Workers - The Centers for Medicare & Medicaid Services (CMS) is requiring workers at health care facilities participating in Medicare or Medicaid to have received the necessary shots to be fully vaccinated. The rule applies to employees regardless of whether their positions are clinical or non-clinical and includes employees, students, trainees, and volunteers who work at a covered facility that receives federal funding from Medicare or Medicaid. It also includes individuals who provide treatment or other services for the facility under contract or other arrangements. The regulation also provides for exemptions based on recognized medical conditions or religious beliefs, observances, or practices. Facilities must develop a similar process or plan for permitting exemptions in alignment with federal law. The regulation requires that facilities develop a process for implementing additional precautions for any staff who are not vaccinated, in order to mitigate the transmission and spread of COVID-19.
The CMS requirements apply to: Ambulatory Surgical Centers, Hospices, Programs of All-Inclusive Care for the Elderly, Hospitals, Long Term Care facilities, Psychiatric Residential Treatment Facilities, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Home Health Agencies, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, Clinics (rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services), Community Mental Health Centers, Home Infusion Therapy suppliers, Rural Health Clinics/Federally Qualified Health Centers, and End-Stage Renal Disease Facilities.
OSHA clarified that it will not apply its new rule to workplaces covered by either the CMS rule or the federal contractor vaccination requirement. And, both OSHA and CMS are making clear that their new rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.
Legal Challenges – As was expected upon the initial announcement of the planned federal vaccine mandates in September, numerous legal challenges have already been filed on all three mandates. As of the time of the issuance of this COVID-19 Blog Update, so far only the OSHA Emergency Temporary Standard (ETS) has actually been issued a stay order by the Fifth Circuit.
For the moment, OSHA must refrain from enforcing the ETS until the Fifth Circuit says otherwise, although this could change at any time a panel of appeals court judges removes the stay. Based the numerous other pending legal challenges, it is likely that a final binding and unifying determination will not be made for weeks or even months.
Aliniti Recommendations - We recommend that employers covered by the federal contractor and CMS regulations to proceed ahead with plans for these respective requirements to go into full effect, as early as, January 4, 2022 with some provisions that may still go into effect on December 5th and continue to monitor any legal challenges that may impact these coverage requirements.
We also advise employers to spend the coming weeks preparing for the ETS as if it will take effect but waiting to implement its measures until the final judicial outcome is certain. The earliest effective date for any of the ETS requirements is December 5, which includes the need for you to have a vaccination policy and various other standards in place such providing for Paid Time Off to get a vaccine and requiring face coverings in the workplace for unvaccinated employees.
As always Aliniti will continue to be an available resource to provide additional guidance to you on your COVID-19 related questions and concerns.
The Aliniti COVID-19 updates are intended as an employer reference guide only and not intended to serve as either legal or medical advice. Any legal questions should be directed to legal counsel and medical questions should be directed to an appropriate medical provider.