On November 16, 2021, 12 states—Montana, Alabama, Arizona, Georgia, Idaho, Indiana, Louisiana, Mississippi, Oklahoma, South Carolina, Utah and West Virginia—filed a complaint in the US District Court for the Western District of Louisiana requesting that the Interim Final Rule with comment period (IFR) that put in place the vaccination mandate applicable to certain covered healthcare facilities and staff be declared arbitrary and capricious, contrary to law and in excess of the Centers for Medicare and Medicaid Services’ (CMS) statutory authority. CMS published an IFR on November 5, 2021, that implements the Biden administration’s previously announced vaccine mandate for healthcare facilities. The expansive IFR applies to more than a dozen types of healthcare providers and suppliers (facilities), affects more than 10 million healthcare staff and carries an anticipated potential price tag in excess of $1.3 billion dollars for the first year of implementation.
Even though the US Court of Appeals for the Fifth Circuit temporarily blocked the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccination rule for employers (though not for the healthcare sector), businesses should continue preparing for important OSHA deadlines.
According to this Reuters article, workplace whistleblowers and fears of disappearing federal funds will likely help with vaccination mandates within businesses, hospitals and nursing homes. However, OSHA is unlikely to demand proof from every healthcare provider of vaccination and testing protocols. The Centers for Medicare & Medicaid Services (CMS) also typically does not survey accredited healthcare providers unless there is a complaint or a need for recertification, McDermott Partner Sandra DiVarco noted.
“On a stakeholder call, CMS reiterated their desire to work with providers to come into compliance and not to sort of send SWAT teams to go out and look for problems,” DiVarco said.
Following a US Court of Appeals for the Fifth Circuit decision to temporarily block the Occupational Safety and Health Administration’s (OSHA) new vaccine requirement rule, many employers have found themselves in a state of confusion. According to this article published in The Hill, businesses could face steep penalties if they willfully violate the rule, such as fines of more than $130,000. But even though the rule is temporarily blocked, McDermott Partner Michelle Strowhiro said businesses should continue preparing for important OSHA deadlines.
“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,” Strowhiro said.
As more employers mandate vaccines for their workforces, in-house legal departments are encountering a host of challenges, including understanding religious accommodations and minimizing litigation exposure. According to this article published in Law.com, employers should have the ability to navigate Americans with Disabilities Act (ADA) and Title VII-related accommodation requests. However, McDermott Partner Carole Spink said many employers have never encountered the current breadth of religious exemption requests from their workforces.
On November 6, 2021, the US Court of Appeals for the Fifth Circuit temporarily blocked the Emergency Temporary Standard (ETS) issued on November 4, 2021, by the Occupational Safety and Health Administration (OSHA) requiring employers with 100 or more employees to implement COVID-19 vaccination policies. The ETS is stayed until further notice, halting its implementation temporarily. While the future of the ETS remains uncertain, employers may want to continue preparing for the ETS as if it is going to take effect while litigation continues.
On November 4, 2021, the US Occupational Safety and Health Administration (OSHA) unveiled its Emergency Temporary Standard (ETS) to protect employees of large employers in all industries from COVID-19. The Centers for Medicare and Medicaid Services (CMS) simultaneously released its Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule, applicable to most Medicare- and Medicaid-certified providers and suppliers, which must be met to continue participation in Medicare and Medicaid programs. Finally, the White House announced that its previously published federal contractor vaccination mandate would be updated to move the compliance deadline from December 8, 2021, to January 4, 2022.
A recent Biden administration Executive Order requires workplace COVID-19 vaccinations for many companies, healthcare workers and federal contractors to occur by December 8. However, the federal government has yet to rule whether payers are federal contractors.
In this Health Payer Specialist article, McDermott Partner Michelle Strowhiro said if the government determines that payers that administer certain plans are federal contractors, renewal contracts signed between October 15 to November 14 will require clauses guaranteeing compliance with the vaccination mandates.
While many of the United States’ largest corporations don’t oppose the Biden administration’s vaccine requirements for many employers, those companies say many of their questions about the administration’s rule have gone unanswered. The new rule requires employers with more than 100 employers to mandate COVID-19 vaccinations or require weekly testing of employees.
In an article published in The Hill, McDermott Partner Michelle Strowhiro said some employers may decide to scrap the testing alternative altogether.
“Administratively, it’s going to be quite burdensome for employers, especially large employers with hundreds or thousands of employees, to track weekly the testing results for employees,” Strowhiro said.
On September 6, 2021, New York Governor Kathy Hochul designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the New York Health and Essential Rights (HERO) Act. This designation means that all New York employers must activate the workplace safety plans that they developed under the HERO Act standards. The workplace safety plan can be based on the model plan jointly developed by the New York State Department of Health and the New York State Department of Labor. Employers can also develop their own plans, subject to certain minimum requirements.
In some of its most powerful language yet (and stopping just short of an absolute requirement), OSHA “strongly encourages” employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects.
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