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What's next? Updates on OSHA ETS, CMS mandate, and federal contractor mandate


OSHA withdraws COVID-19 vaccine and testing ETS but plans permanent rule

On January 13, the Supreme Court blocked OSHA's COVID-19 Vaccine and Testing ETS. While technically this was only a temporary stay of the ETS pending a full review of the legal challenges to the rule by the Sixth Circuit, it was considered a death knell. On January 25, OSHA announced it will no longer seek to enforce the standard, effectively ending the lawsuit.

However, in so doing OSHA added "it is not withdrawing the ETS to the extent that it serves as a proposed rule." This means that OSHA plans to develop a rule addressing COVID-19, but the process will follow the ordinary rulemaking notice-and-comment process rather than the expedited emergency process OSHA used for the withdrawn ETS.

Given the Supreme Court's decision, it's unlikely that the proposed permanent rule will look exactly like the ETF. Yet, the Supreme Court noted that OSHA is not blocked from any regulation regarding COVID-19, just a broad, one-size-fits-all approach. Arguments seemed to suggest that a standard may be more palatable if it pertained to certain industries or under certain conditions where "the virus posed a special danger because of the particular features of an employee's job or workplace."

While it is only speculation at this point, some possibilities include:

The process will take some time. The agency has said that it could produce a final permanent ETS for healthcare in "six to nine months" and at least the same can be expected for a COVID-19 standard.

What should employers do now?

While the Supreme Court ruling prohibited OSHA from enforcing a mandate, it does not bar employers from issuing a vaccination and/or testing mandate or from requiring non-vaccinated employees to comply with additional safety protocols. Employers now can choose to implement policies and practices best suited to their workplace, except in states or localities where such policies are prohibited or limited by law.

Bloomberg reports that 35 percent of companies polled by Gartner Inc. said the court's Jan. 13 ruling won't derail their plans to require vaccinations, compared with just four percent dropping their mandate. Starbucks and GE are among the prominent companies choosing to suspend the mandate. A further 29 percent haven't decided, while 12 percent said they're now less likely to impose a requirement. About 40 percent believe a mandate can help attract workers, while about 25 percent disagree.

In anticipation of the mandate, many employers had begun to gather data on the vaccination status of their employees. Since that information is necessary to comply with the CDC guidance regarding quarantine and state and local requirements, such as those in California and New York City, it would be prudent to continue to do so and maintain the records securely and confidentially.

Employers should clearly communicate their decisions and policies to employees. As guidance continues to change, it's particularly important to have concise, clear guidelines for when and to whom your workers should report an illness or exposure and how long they are required to quarantine or stay home from work.

Employers also should expect aggressive enforcement from OSHA as they are still required to comply with OSHA's COVID-19 National Emphasis Program (NEP) and the COVID-19 Workplace Guidance. Following the Supreme Court's decision, the DOL issued a forceful statement indicating it would do everything in its authority to hold employers accountable under the COVID-19 NEP and the General Duty Clause. OSHA has hired hundreds of additional investigators and is prioritizing on-site inspections of workplaces where there are complaints or reports of potential worker exposures to COVID-19, high-risk industries for COVID-19, and follow-up inspections of establishments that were previously inspected because of a COVID-19-related fatality. A list of the citations is publicly displayed on the website.

Moreover, state and local COVID-19 legislation is being updated, changed, or implemented at a dizzying clip. Minnesota was the only State OSHA program that had adopted the ETS before the Supreme Court's ruling, but it suspended enforcement immediately following the Supreme Court ruling. While it's not expected that State Plan states will elect to promulgate a standard, some, such as California, have already extended and expanded the COVID-19 Prevention Emergency Temporary Standards.There also has been a proliferation of state and local actions and court cases that impact employers.

Montana prohibits vaccination mandates, and other states, including Alabama, Arkansas, Florida, Iowa, Kansas, North Dakota, Tennessee, Texas, Utah, West Virginia have restrictions. Other states have requirements for healthcare workers and/or state employees to be vaccinated and/or tested, while others have paid leave requirements for employees to get the vaccine and/or recover from its side effects. Some mandates are being updated to include booster shots. New York City issued a sweeping mandate for all private employers to require in-person workers to be fully vaccinated, effective Dec. 27, 2021. Chicago issued a public health order affecting employees and patrons, requiring proof of vaccination to dine indoors, visit gyms, or entertainment venues where food and drinks are served. A Massachusetts Appeals Court recently temporarily paused Boston's vaccination mandate for its city workforce.

The COVID-19 pandemic continues to reshape the regulatory landscape and create uncertainty for businesses. Stay abreast of evolving rules and regulations.



CMS extends vaccination deadlines in some states

Unlike the OSHA ETS, the Supreme Court allowed the Centers for Medicare and Medicaid Services (CMS) to require COVID-19 vaccination for health care workers at Medicare- and Medicaid-certified providers and suppliers. When the decision was rendered, the mandate was in force in 25 states, but not in Alabama, Alaska, Arkansas, Arizona, 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. In these states (except Texas), workers have until Feb. 14 to receive their first COVID-19 vaccine dose and must complete the vaccine series by March 15. In Texas, workers have until Feb. 22 to receive their first COVID-19 vaccine dose and March 21 to complete the series. In all other states, the original deadlines of January 27 and February 28 apply. Additionally, employers must track employees' vaccination status and develop policies that include medical and religious exemptions and accommodations.

While the deadline dates differ, the requirements for compliance are the same:

What should employers do now?

The CMS mandate will affect about 10 million people at about 76,000 health care facilities participating in the Medicaid and Medicare program. By now, facilities should have determined if they are covered by the law. Carefully review the mandate requirements and the FAQs. Have a robust policy for exemption requests and communicate it and the deadlines to the staff.

All covered facilities should prepare for CMS survey activity. The enforcement tools depend on the nature of the facility. For nursing homes, home health agencies, and hospices, CMS may impose civil monetary penalties, deny payments, or terminate participation in Medicare and Medicaid. For other facilities (including hospitals and ASCs), the sole enforcement remedy is termination of Medicare and Medicaid participation. While the goal of the agency is to bring facilities into compliance, it makes clear "facility staff vaccinations rates under 100% constitute non-compliance under the rule."

In states that have passed laws or orders conflicting with the CMS Rule, including Florida, Texas, Tennessee, and Montana, it's best to consult with legal counsel.



Injunction blocks federal contractor vaccination mandate only, not other safety protocols

The third major vaccine mandate proposal for employees of federal contractors is still making its way through the courts, with appeals ongoing in four circuit courts. A nationwide block has been in place since December, however, a recent ruling issued by the Georgia Federal District Court on Jan. 21 clarified that the nationwide court injunction only blocked the vaccination mandate and does not include the workplace safety provisions in Executive Order (EO) 14042, "Ensuring Adequate COVID Safety Protocols for Federal Contractors." In the same order, the court declined to answer the Biden Administration's request whether contractors could voluntarily accept contract modifications requiring employee vaccination.

To reflect this ruling, the Safer Taskforce Guidance was updated on Jan. 24, noting "guidance on other Federal agency safety protocols based on vaccination status, including guidance on protocols related to masking, distancing, travel, testing, and quarantine, remains in effect." Also, it requires covered contractors to designate COVID safety coordinators in contractor workplaces.

Other federal courts have enjoined EO 14042, but only in certain states including Florida v. Nelson (Florida), Kentucky v. Biden (Kentucky, Ohio, and Tennessee), and Missouri v. Biden (Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming). It appears that only the Florida case constrained all aspects of the order.

Notably, Judge Jeffrey V. Brown (a Trump appointee to the S.D. of Texas) declined to act on the federal contractor mandate but issued an opinion and order enjoining enforcement of the federal employee mandate for vaccinations.

What should employers do now?

According to the law firm, Conn, Maciel, Carey, "federal contractor mandate being killed is far from a given." They advise watching what happens in the appellate courts over the next month or so. And it's hard to predict how the Supreme Court would rule given the differing opinions on the OSHA ETS and the CMS mandate. Regarding entities that accept federal dollars, the federal contractor mandate is more aligned with the CMS mandate.

The firm recommends contractors that have accepted a contract with the new clause implementing EO 14042:

It's a good idea to check regularly for updates on the What's New? section of the Safer Federal Workforce website.

Contractors should also stay abreast of court actions in their jurisdictions as the courts can be petitioned for injunctive relief of other Safer Taskforce Guidance requirements now that it is clear only the vaccine requirement is enjoined nationwide.

As a reminder, employees of all federal contractors and subcontractors onsite at federal installations must provide proof of vaccination status or a recent negative COVID-19 test result. The masking and physical distancing and other safety requirements at each federal workplace must be followed in accordance with federal agency COVID-19 workplace safety protocols for federal buildings and federally controlled facilities.