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OSHA

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Message from Gibbel Kraybill & Hess LLP:

On Friday evening, the Sixth Circuit lifted the stay on OSHA’s Emergency Temporary Standard (ETS). The ETS states that any employer with more than 100 employees must require its employees to either show proof of a COVID vaccination or submit to weekly testing and mask at all times when indoors. In the absence of a Supreme Court ruling to the contrary, the ETS will go into effect, and employers will be required to adhere to its standards. Read the article here.

GKH attorneys are closely monitoring the COVID-19 crisis and will continue to post updates and resources for individuals and businesses.

View Resources Here

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Businesses Left in Limbo on COVID-19 Mandate
Excerpts from: The Hill, November 10, 2021

Businesses are in limbo after a federal court halted the Biden administration’s vaccine-or-test mandate for private employers.  

Employers are preparing to enforce the Occupational Safety and Health Administration’s (OSHA) rule, which would require businesses with 100 or more employees to mandate COVID-19 vaccinations or weekly testing by Jan. 4.

But it’s now unclear whether the requirement will survive legal challenges after the 5th U.S. Circuit Court of Appeals temporarily blocked the rule over the weekend, creating confusion among companies on how to move forward. Labor lawyers are urging businesses to continue preparing for key OSHA deadlines, given that the court’s stay, for now, is only temporary.

“I think it’s prudent for employers to proceed with planning assuming that the OSHA rule, at least in some form or fashion, will be implemented pending final resolution of the various court cases,” said Michelle Strowhiro, a lawyer at McDermott Will & Emery who advises businesses on COVID-19 employment issues.

While the OSHA rule requires businesses to mandate weekly testing for unvaccinated employees by January, the most important deadline is coming up soon. By Dec. 5, employers must collect employees’ proof of vaccination and provide paid leave for those getting the shot, while unvaccinated employees must begin wearing a mask. 

The risks are high for businesses banking on the rule being overturned. Employers that don’t comply face fines of up to $136,532 for willful violations. 

“Employers should be keeping one eye on the courts and one eye on taking the steps necessary to comply with the regulation by the time it comes into effect in early December so that they’re not caught flat-footed,” said Evandro Gigante, an employment attorney at Proskauer Rose LLP. 

Large companies that don’t already track their employees’ vaccination status are scrambling to adopt systems to verify that information ahead of the December deadline. They’re also crafting rules that lay out religious and disability accommodations and the penalties for employees who don’t comply with the OSHA requirement. 

The OSHA rule has already drawn a flurry of lawsuits from GOP-led states and conservative interest groups. Following a challenge from Texas, Louisiana, Mississippi, Utah and South Carolina, the 5th Circuit temporarily halted the rule Saturday, citing “grave statutory and constitutional issues.”

The OSHA rule has been challenged in several different circuit courts, and the cases will likely be combined into one and sent to a federal appeals court as soon as next week. Experts say the lottery will probably send the case to a less conservative court than the 5th Circuit, which previously allowed Texas’s controversial six-week abortion ban to remain in effect.

Whichever side loses the case is expected to appeal to the Supreme Court, which has a 6-3 conservative majority. Labor lawyers largely believe that the OSHA standard is constitutional, and they note that it is less strict than other federal vaccine mandates for health care workers and federal contractors. However, it’s still unclear whether the rule would survive the high court. 

In the meantime, the Biden administration is urging large employers to move forward with workplace vaccine requirements as it fights to protect its rule in court.

Private vaccine mandates have steadily grown more popular throughout the pandemic. Several companies, including United Airlines and Tyson Foods, have already enacted their own vaccine requirements that are far stricter than the minimum OSHA standard.

An October survey from consulting firm Mercer found that 34 percent of employers — made up mostly by businesses with 100 or more employees — currently have some form of vaccine mandate in place.

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Photo by Markus Winkler on Unsplash

Mandatory Vaccination Update
Medicare and Medicaid Programs: Omnibus COVID-19 Health Care Staff Vaccination
OSHA Emergency Temporary Standard (ETS)  

RCPA continues to work for clarification with our State stakeholders from the Department of Human Services (DHS) and the Governor’s office as well as for guidance at the federal end through our National Councils.

The National Council on Mental Wellbeing has received several questions around the recent vaccine mandates released by the Biden Administration. The following links and summaries from the Council’s federal consultant group may answer some of your questions.

On November 4, the Centers for Medicare and Medicaid Services (CMS) issued an interim final rule with comment (IFC), entitled “Medicare and Medicaid Programs: Omnibus COVID-19 Health Care Staff Vaccination” (Rule and Press Release).The FAQ provides excellent scenario-based guidance that may be applicable to your agency.

The IFC stipulates that all staff members of certain providers and suppliers participating in the Medicare and Medicaid programs, including those who perform their duties outside of a formal clinical setting, must be fully vaccinated against COVID-19 unless exempt. The definition of applicable facilities under the Medicare-certified providers and suppliers is listed under federal statute (for example, the current Medicare definition of CMHCs (there are 129 Medicare-certified CMHCs throughout the country), which is Section 4162 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101–508, enacted November 5, 1990) (OBRA 1990), which added sections 1861(ff) and 1832(a)(2)(J) to the Act, includes CMHCs as entities that are authorized to provide partial hospitalization services under Part B of the Medicare program).

However, the definition of Medicaid-certified providers and suppliers will vary by state. To that end RCPA, as part of its efforts, is seeking this clarification and to confirm determinations on which providers and suppliers are subject to the IFC. 

As noted in the summary below, the IFC does not allow for weekly testing in lieu of vaccination and maintains the employer’s right to require full vaccination of employees regardless of exemptions listed in the IFC. The final rule is expected to be published in The Federal Register on November 5, 2021, with an expected effective date of January 4, 2022. There will be the opportunity to comment on the IFC. Comments must be received no later than 60 days after the publication of the IFC in The Federal Register.

Also released was the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) for COVID-19 Vaccination and Testing in the Workplace (Rule; Fact Sheet; Press Release). The ETS requires employees who are employed by private-sector employers with 100 or more employees to get vaccinated or test negative for the virus once per week and wear a mask indoors. It also requires employers to provide paid time off for employees to get vaccinated and recovery time from vaccination. The 28 states with OHSA-approved state plans must also adhere to the ETS.

The ETS mandates that employers 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.

The testing requirement for unvaccinated workers is slated to begin on January 4, 2022, and employers must comply with all other requirements (i.e. providing paid time off for employees to get vaccinated and masking for unvaccinated workers) by December 5, 2021. Employees falling under the ETS rules will need to have their final vaccination dose by January 4, 2022.

OSHA has published a series of resources with respect to this ETS, including frequently asked questions, guidance materials, and reporting requirements.

RCPA will continue to update members on the status and any changes to the current information that has been published.

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The American Network of Community Options and Resources (ANCOR) provided feedback to the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS). While ANCOR members understand and support OSHA’s intent to protect healthcare and healthcare support service workers from occupational exposure to COVID-19, there is a  concern that the rule remains unclear in its scope of implementation and may further exacerbate the current workforce crisis impacting services and supports for individuals with intellectual and developmental disabilities (I/DD).

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From ANCOR:

The Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Health Emergency Temporary Standard (“ETS”) became effective for healthcare settings when published in the Federal Register on June 21, 2021.

Since publication, we’ve received questions, comments, and concerns from ANCOR membership concerning whether the ETS applies to home and community-based services. Unfortunately, the new regulations are not industry specific making it difficult to apply universal standards for whether a service falls within the scope of the ETS. As service delivery differs by state and provider, each provider will need to conduct an individual analysis of both the service provided and setting delivered to determine appropriate compliance under the ETS.

Attached, please find a brief scope summary with questions for consideration to support your individual analysis of whether the services you provide fall within the scope of the ETS. Also attached as a companion piece, please find Guide Consulting’s breakdown of the ETS with key requirements shared last month on the ACC. For further reference, OSHA also posted a webinar breaking down the scope and requirements here.

ANCOR will be submitting written comment requesting additional guidance on applicability to home and community-based services. Written comments on the ETS are due by August 20, 2021 and can be submitted electronically for Docket No. OSHA-2020-0004 via the Federal eRulemaking Portal at www.regulations.gov.

Thanks and please do not hesitate to reach out with questions or concerns.

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Lydia Dawson, J.D.
ANCOR | Director of Policy, Regulatory and Legal Analysis
571.932.5375 |
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From ACCSES:

Please see the Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) that will apply to healthcare employers and additional OSHA guidance issued to protect workers in workplaces not subject to the ETS.

We had a number of calls asking about the ETS and to what businesses it applies. OSHA prepared this chart to help employers determine if they are subject to the ETS rule. Footnote number 1 is probably the most helpful part of the chart. In addition, the law firm of Troutman Pepper prepared an analysis, which may assist in determining whether your organization is subject to the ETS. We encourage anyone who is unsure whether the ETS applies to their organization to consult with legal counsel.

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