Vaccine Mandate for Health Care Workers Moves Forward While OSHA Withdraws ETS

By Nick Golding & Olivia Robinson

On January 13, 2022, the United States Supreme Court published its highly anticipated opinion allowing the contested Centers for Medicare and Medicaid Services (CMS) vaccine mandate for health care workers to go into effect while challenges proceed in the lower federal courts of appeals. The Supreme Court’s opinion lifts a preliminary injunction prohibiting enforcement of the CMS rule in the following 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.

CMS’s interim final rule was published on November 5, 2021, alongside OSHA’s Emergency Temporary Standard (ETS), which required employees at private businesses with 100 or more workers be vaccinated for COVID-19 or else wear face masks and be tested weekly. Both the CMS rule and OSHA’s ETS faced immediate legal challenges and quickly made their way before the Supreme Court. Although the Supreme Court ruled 6-3 in a companion opinion that OSHA’s ETS exceeded the agency’s Congressional authority, it held that CMS was within its power to enact its rule under the Medicare statute. 

CMS Issues Guidance for Compliance

Following the Supreme Court’s decision, CMS issued a guidance memorandum on compliance for impacted employers in the 24 states impacted by the Supreme Court’s order, including Indiana and Kentucky. Impacted employers should take note of the following compliance deadlines.

February 14, 2022

Health care facilities in these states now have until February 14th to demonstrate that 100% of staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC. 

March 15, 2022

By March 15th, these facilities must ensure that 100% of staff have received the necessary doses to complete the vaccine series, or have been granted a qualifying exemption, or identified as having a temporary delay by the CDC. 

This guidance only applies to states impacted by the Supreme Court’s order, however. Facilities in other states must abide by the CMS rule’s original timeline and ensure that staff are fully vaccinated by February 28, 2022. 

Covered health care employers should also remain mindful of applicable state and local laws to ensure that any additional requirements are followed. 

OSHA Withdraws ETS

On January 25, 2022, OSHA announced it is withdrawing its ETS issued on November 5, 2021, which required employees at private employers with 100 or more employees to be vaccinated for COVID-19 or else be tested weekly and wear face masks. The withdrawal is effective January 26, 2022.

In its announcement, OSHA makes clear that it is not withdrawing the ETS as a proposed rule, and it will be finalizing a permanent COVID-19 Healthcare Standard.

Employers should keep in mind that, although OSHA is withdrawing its ETS, some states and localities have enacted new laws that have similar requirements as the ETS, and employers in those states may be required to comply with these laws. In addition, employers may adopt their own policies with similar requirements as the ETS, subject to medical or religious exemptions.

For additional information on this or any related topic, please contact any of the KDDK labor and employment law professionals.

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