On July 12, 2022, the US Equal Employment Opportunity Commission (EEOC) revised its guidance on compliance with disability discrimination law during the COVID-19 pandemic. While previous guidance, initially published on December 14, 2021, provided that COVID-19 viral testing was permissible for on-site employees and did not run afoul of the Americans with Disability Act (ADA) due to health and safety priorities of the pandemic, the recent EEOC updates now only permit screening and viral testing measures when such measures are job-related and consistent with business necessity, holding COVID-19 testing to the same standard as other workplace medical tests. The July 12 update “makes clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening of employees to prevent workplace transmission of COVID-19,” the EEOC said.
According to this Politico article, the US Centers for Medicare and Medicaid Services (CMS) has had difficulty enforcing its own COVID-19-related hospital rules. The agency often lacks the necessary resources to make sure its regulations are followed. McDermott Partner Sandra M. DiVarco said small changes—like allowing patients to wear highly protective N95 face masks—that CMS publicizes are “not always very coordinated.”
OSHA Announces Plan to ‘Expand Its Presence’ in Certain Healthcare Facilities Treating COVID-19 Patients
Between March 9, 2022, and June 9, 2022, the US Occupational Safety and Health Administration (OSHA) will “expand its presence” in hospitals and skilled nursing facilities that treat COVID-19 patients and that were previously cited or issued Hazard Alert Letters for alleged COVID-19 violations. OSHA’s stated purpose is to “target high-hazard healthcare facilities” to “verify and assess . . . compliance actions taken” by employers to rectify prior allegations related to COVID-19 safety violations. The initiative is focusing on employers’ “readiness to address any ongoing or future COVID-19 surges.”
On March 22, 2022, the US Occupational Safety and Health Administration (OSHA) announced a limited reopening of the rulemaking record for the COVID-19 emergency temporary standard for the healthcare industry, originally published on June 21, 2021 (the Healthcare ETS). OSHA will hold an informal public hearing to gather additional information from healthcare industry stakeholders. With the announcement, OSHA reaffirmed its plans to publish a permanent COVID-19 safety standard (i.e., regulation) for the healthcare industry later this year.
Even though the US Supreme Court blocked the US Occupational Safety and Health Administration’s (OSHA) vaccinate-or-test mandate for most employers, there is still confusion around who covers the cost for employee COVID-19 tests. In this Law360 article, McDermott’s Dawn Peacock outlines what employers need to know.
The US Supreme Court’s January ruling that stayed enforcement of the US Occupational Safety and Health Administration’s (OSHA) shot-or-test mandate may limit some employers from introducing their own vaccination, testing or mask requirements. However, in this Bloomberg Law article, McDermott Partner Michelle Strowhiro said employers might still want to consider implementing portions of the standard—so long as state and local limits let them.
On January 25, 2022, the US Occupational Safety and Health Administration (OSHA) announced that it would withdraw its controversial “vax-or-test” Emergency Temporary Standard (ETS), which required large employers to impose vaccination or testing requirements upon their employees. The withdrawal will be effective as soon as the announcement is published in the Federal Register, which is scheduled to occur on January 26, 2022.
On January 13, 2022, the Supreme Court of the United States released two emergency opinions that change the landscape of the three federal vaccine rules. In summary:
- A 5-4 Court majority let the Centers for Medicare & Medicaid Services (CMS) enforce its vaccine mandate nationwide, impacting specified healthcare facilities.
- A 6-3 majority blocked the US Occupational Safety and Health Administration (OSHA) from enforcing its vax-or-test Emergency Temporary Standard (ETS) applicable to large employers.
- The third federal vaccine rule—the federal contractor vaccine mandate—remains subject to multiple legal challenges and, at this time, the government is blocked from enforcing the mandate nationwide. The Court has not yet weighed in on this mandate.
The courts continue to move the vaccine mandate goalposts on employers as dozens of legal challenges work their way through the courts. The latest developments are major game changers for employers. As of today, the US Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) vaccine-or-test rule is enforceable nationwide, and the US Centers for Medicare & Medicaid Services (CMS) Interim Final Rule (IFR) mandating vaccination, subject to exemptions, is enforceable in 25 states.
On December 6, 2021, New York City Mayor Bill de Blasio announced that all New York City employers, regardless of size, will be required to impose COVID-19 vaccination mandates on all employees (subject to legally protected exemptions) by December 27, 2021.
This new vaccine requirement is in addition to the City’s existing COVID-19 vaccination mandate for establishments providing indoor dining, gyms, theaters and other entertainment services. Mayor de Blasio cited the combination of the new Omicron COVID-19 variant and holiday gatherings as the motivation for this mandate.