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.
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.
As COVID-19 becomes an endemic threat, corporate officers should accept the fact that the virus will be a permanent enterprise risk for the indefinite future.
In thisFT Specialist article, McDermott Partner Michael Peregrine says corporate boards should place their focus on business and operational challenges that result from the pandemic. These include:
Enhanced workplace safety in response to delta’s extreme transmissibility;
An equitable, enforceable and sustainable approach to employees who do not get vaccinated;
The feasibility of current return-to-work plans;
Work-from-home arrangements as a more permanent employment model; and
The pandemic’s outsize impact on female employees.
Many plan administrators expressed bewilderment at the Biden administration’s recent guidance to limit vaccine incentive or surcharge programs for unvaccinated plan participants. According to this SHRM article, which features insight from McDermott Partner Judith Wethall, any premium surcharges must comply with the Health Insurance Portability and Accountability Act’s (HIPPA) nondiscrimination rules. HIPPA nondiscrimination rules allow for participatory and health-contingent permissible wellness programs.
As more and more private and public companies require vaccinations, employees are finding it increasingly difficult to avoid these mandates. In this BBC Radio 5 Live interview, McDermott Partner Michelle Strowhiro noted that US employers have a right to mandate vaccination for any employee that is in an employer’s office.
“As such, if an employee is violating that policy and is coming into an office unvaccinated, an employer can take action and terminate that employee,” Strowhiro said.
An August Willis Towers Watson poll found that 52% of 961 surveyed companies intend to implement at least one vaccine mandate by 2021’s fourth quarter. In a poll in May, 72% of respondents said they had no plans to require vaccines.
To encourage vaccination, some employers—like Delta Air Lines—are introducing or considering company healthcare plan surcharges for unvaccinated employees. However, in this article published via Advisory Board, McDermott Partner Judith Wethall said few employers have actually “pulled the trigger” on such a move.
Companies curious about a major airline’s unvaccinated healthcare premium surcharge are discovering that it may be too complex to copy. The airline recently announced that unvaccinated employees enrolled in the company’s health plan would see a $200 monthly surcharge. In this Bloomberg Law article, McDermott Partner Judith Wethall said the compliance hurdles are “tricky and kind of dilute the message.”
As companies consider whether or not to introduce vaccine mandates for employees, there is interest among some employers to increase health care premiums or impose financial penalties on employees who refuse vaccination. One major airline, for example, recently announced that unvaccinated employees enrolled in the company’s health plan would see a $200 monthly surcharge. However, according to McDermott Partner Judith Wethall in The Hill, financial penalties for the unvaccinated are legally complicated, and vaccine mandates likely pose less regulatory issues for employers to impose.
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