January 2022 Mid-Month #2 Federal HR Updates

Supreme Court Votes to Stay OSHA ETS, Reinstates Vaccine Mandate for Healthcare Workers

Update Applicable to:
All employers with 100 or more employees, and all employers with Medicare and Medicaid-certified employees

What happened?
On January 13, 2022, the Supreme Court of the United States (SCOTUS) stayed the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) but allowed the Centers for Medicare and Medicaid Services (CMS) to enforce their vaccine mandate.

What are the details?
OSHA ETS
On November 5, 2021, OSHA first issued the ETS requiring all employers with 100 or more employees to adopt either a mandatory COVID-19 vaccination policy or a policy requiring regular COVID-19 testing and face coverings for unvaccinated employees. The ETS was met by several legal challenges. Only a day after the ETS’s official publication, the Fifth Circuit Court of Appeals stayed enforcement, and a three-judge panel of the Fifth Circuit affirmed the initial stay on November 12, 2021.

After the Fifth Circuit issued the initial stay, the nationwide legal challenges were consolidated before the Sixth Circuit Court of Appeals. On December 17, 2021, the Sixth Circuit lifted the stay of enforcement. Several parties sought emergency relief from the U.S. Supreme Court, arguing that the ETS exceeded OSHA’s statutory authority and was otherwise unlawful.

In a 6-3 vote, the Supreme Court found that the applicants were likely to succeed on the merits of their claim that the Secretary of Labor (acting through OSHA) lacked authority to impose the ETS’s mandate, and it granted the stay.

CMS Vaccine Mandate
Along with granting the stay, in a 5-4 per curiam decision, SCOTUS permitted the CMS to enforce its interim final rule requiring many Medicare- and Medicaid-certified providers’ and suppliers’ staff to receive the COVID-19 vaccine.

Under the rule’s planned timeline, employees had to receive the first dose of a two-dose or a one-dose of a COVID-19 vaccine prior to providing any care, treatment, or other services by December 6, 2021, and the necessary vaccinations to be fully vaccinated — either two doses of Pfizer-BioNTech or Moderna, or one dose of Johnson & Johnson by January 4, 2022.

The regulation provides for exemptions based on recognized medical conditions or religious beliefs. However, there is no weekly testing exception for unvaccinated workers.

Also, the CMS issued a press release following the January 13, 2022 ruling confirming that the 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.” Those deadlines are:

By January 27, 2022, the CMS will expect covered facilities to have developed and implemented policies and procedures to ensure that all staff are vaccinated for COVID-19 and that 100% of staff have received at least one dose of the vaccination (or have a pending request for, or have been granted a qualifying exemption, or have been identified as being entitled to a temporary delay as recommended by the Centers for Disease Control and Prevention (CDC)).

By February 26, 2022, those facilities must also ensure that 100% of staff have received the necessary doses to complete their vaccine series, have been granted a qualifying exemption, or identified as being entitled to a temporary delay as recommended by the CDC.

As of January 14, 2022, the CMS issued an updated guidance to State Survey Agency directors providing 30 days (by February 13, 2022) for facilities to demonstrate that staff had their first vaccine doses and 60 days (by March 15, 2022) for facilities to demonstrate that staff are fully vaccinated in the 24 states subject to the injunctions lifted in the Supreme Court opinion. This extension applies only to surveyors in the following 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.

Texas remains subject to an injunction, while all other U.S. states retain their current timelines (including fully vaccinated staff by February 28, 2022).

For more information, please see the links below:

SCOTUS Order

CMS Press Release

CMS Covid-19 Vaccine Policy and Guidance

OSHA Article 1 – OSHA Article 2

CMS Article 1 – CMS Article 2 – CMS Article 3

What do employers need to do?
Employers should review the links provided above to see what is applicable to them and what they may need to do in order to keep the workplace safe amidst the current global pandemic and be compliant with local, state, and federal guidelines.

Vensure also encourages employers to reach out to their local health departments for more information and guidance on any ETS or mandate put in place in their location.