In a 6-3 decision just released, the Supreme Court blocked OSHA’s Emergency COVID-19 Vaccination and Testing Standard (“ETS”) from taking effect, which required employers with one hundred or more employees to conduct weekly testing of all unvaccinated employees, amongst other things.
While procedurally, the ruling merely reinstituted the stay of the ETS, the ruling signaled the final outcome for the ETS, finding more broadly that the ETS went beyond OSHA’s authority. The Court stated: “[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
Moving forward, we will continue to keep you advised as to all relevant updates relating to the ETS—and any revised ETS that OSHA attempts to issue in light of the ruling.
On Tuesday, November 30, Louisiana federal district Judge Doughty issued a nationwide injunction against implementation of Centers for Medicare & Medicaid Services’ (CMS) vaccine mandate for health care workers. Judge Doughty’s decision was issued just a day after Missouri federal district Judge Schelp issued a preliminary injunction against the mandate in 10 states. Unlike the Missouri decision, the Louisiana court issued a nationwide injunction due to that court’s conclusion that there was a need for uniformity and protection of unvaccinated healthcare workers. In reaching its decision, the court relied heavily on the Fifth Circuit’s injunction against the OSHA vaccine or test mandate, which we discussed in an earlier blog.
First, the court agreed that plaintiffs were likely to prevail on all of their arguments against the vaccine mandate. The court concluded that CMS issued the vaccine mandate without following statutorily required processes for notice and comment and rejected CMS’ argument that it met the good cause exception that would exempt it from those requirements. Next, the court found that the mandate was beyond the authority of CMS, concluding that such a sweeping requirement should have at least been issued by Congress, not a federal agency, and questioned whether even Congress would have authority to issue the mandate.
The court also concluded that the CMS mandate is likely contrary to law because the federal government did not consult with appropriate state agencies regarding the mandate, improperly dictated hiring and firing policies with respect to unvaccinated employees, and did not conduct a regulatory impact analysis for rural hospitals given the mandate’s likely significant impact on rural hospitals.
In addition, the court agreed that the CMS mandate was likely arbitrary and capricious because it ignores patient well-being and instead focuses on the health of healthcare providers. Plaintiffs maintained that increasing individual vaccine rates would harm patient well-being by causing staff shortages and the federal government failed to consider or arbitrarily rejected alternatives to the mandate, such as daily or weekly COVID testing, wearing masks, natural immunity and/or social distancing. The court found that CMS had not provided any evidence of why it rejected these alternatives or why it departed from its earlier position of not requiring vaccines. Finally, the court found that the mandate likely violates the states’ police powers and improperly delegates authority to CMS.
The court next concluded that the states had shown irreparable injury by not being able to enforce their laws that were preempted by the mandate, incurring costs associated with the mandate, by having their police power encroached, and by having substantial burdens placed on the liberty interests of their citizens. Granting the injunction was in the public interest because it would maintain the liberty of individuals who do not want to take the COVID-19 vaccine. We will keep you updated regarding the status of this issue. In the interim, health care entities who were subject to the CMS rule should be prepared to comply with the rule if the injunction is lifted. Our prior post discusses the requirements of the rule.
In September, the Biden Administration directed OSHA to issue an Emergency Temporary Standard (“ETS”) requiring employers with one hundred or more employees to ensure their employees are either fully vaccinated or tested for COVID-19 on a weekly basis. That promised ETS was published on November 5, 2021, and linked here are OSHA’s summary of the ETS and the FAQ’s relating to the ETS.
One week later, on November 12, 2021, the 5th Circuit Court of Appeals issuing a scathing opinion staying the enforcement of the ETS. In the week that followed, legal challenges were brought in every other Circuit Court of Appeals across the country. On November 16, 2021, the matter was assigned through a lottery to the 6th Circuit Court of Appeals, which has jurisdiction over Michigan, Ohio, Kentucky, and Tennessee. If the 6th Circuit upholds the stay of the ETS—which seems more likely than not—then the ETS will remain stayed while the issue proceeds to the U.S. Supreme Court. If the 6th Circuit lifts the stay of the ETS, then the ETS could potentially go into effect while the issue proceeds to the U.S. Supreme Court.
On November 17, 2021, OSHA formally acknowledged that it had suspended all activities related to the implementation and enforcement of the ETS. However, OSHA and the Biden Administration have vowed to continue the fight and implement the ETS if/when allowed, so at this juncture, we continue to recommend that employers plan and prepare for the potential implementation of the ETS—namely, preparing the required policies and compiling a roster of employees who have been vaccinated (and those who have not).
For a more thorough discussion of the ETS, the pending legal challenges, and our recommendation moving forward, please see our recent webinar on these issues. We will continue to keep you advised as to the status of the ETS and the related legal challenges.
The United States Department of Labor released a long-awaited Emergency Temporary Standard (“ETS”) for private employers with over 100 employees. The 490 page interim final rule answers a number of questions employers have had since the Biden Administration announced its plan in September, including:
What is the application to employers?
The ETS applies to employers with 100 or more employees as of November 5, 2021, regardless of the number of employees working at a specific location. The ETS does not, however, apply to employers covered by the CMS rule or federal contractors, so health care providers (other than physician groups) should review the CMS rule and federal contractors should follow the guidance published by the Safer Federal Workforce Taskforce.
The 100 employee count includes part-time, temporary, and seasonal employees, as well as home workers – however, employees who work exclusively outdoors and/or at home are not subject to the mandatory vaccination/testing requirements.
Do employers have to adopt a COVID-19 policy?
Employers must develop, implement and enforce either: (1) a mandatory vaccination policy; or (2) a policy requiring employees to either get vaccinated or test once a week and wear a face covering at work.
Employers choosing to implement the mandatory vaccine policy should start with OSHA’s sample policy, available here. It contains all the necessary information that an employer needs to implement a vaccine mandate policy in compliance with the ETS. Specifically, it contains information for employers to use regarding vaccination dates, acceptable supporting documentation of vaccination, employee notification and removal from the workplace with a positive COVID-19 test, and information on testing and masking requirements.
Employers who instead decide to have an optional vaccine policy with mandatory weekly testing must also have a written policy, OSHA template available here. If the employer goes with this option, it must “establish, implement, and enforce a written policy allowing any employee not subject to a mandatory vaccination policy to either choose to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering in lieu of vaccination.” Similar to the vaccine mandate policy, the testing policy contains all the relevant information for the mandatory weekly testing and mask wearing, as detailed in the ETS.
If the employer adopts a mandatory vaccination policy, can employees request a religious or medical exemption?
Yes, employers who adopt mandatory vaccination policies cannot require vaccination for employees:
For whom a vaccine is medically contraindicated;
For whom medical necessity requires a delay in vaccination; or
Who are legally entitled to a reasonable accommodation because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
Do employers have to provide paid leave for employees to get vaccinated?
Employers must provide up to 4 hours of paid leave for employees to become vaccinated and, if necessary, “reasonable time and paid sick leave” to recover from side effects experienced that prevent them from working.
What are the testing requirements and do employers need to pay for testing?
The ETS provides several examples of testing that would satisfy the weekly requirements, including tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer. Testing cannot be both self-administered and self-read.
The ETS clarifies that employers do not need to provide or pay for weekly testing for unvaccinated employees — unless required by other laws, regulations, employment contract, and/or collective bargaining agreements. For example, employers would typically need to pay the cost of testing for employees who receive a medical or religious exemption from a mandatory vaccination policy.
What are the upcoming vaccine deadlines?
Employers must begin providing paid time off to get vaccinated and/or recover from vaccination, and implement face mask requirements, by December 5, 2021. The deadline for employees to become fully vaccinated – meaning the deadline to have received their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – is January 4, 2022.
Are employers required to keep records of employee vaccinations?
Employers must obtain and keep proof of vaccination from employees. Documentation should generally include the name of employee, which vaccine was received, name of the healthcare provider, and date of vaccination. For unvaccinated employees, employers must maintain a record of each test result the unvaccinated employee is required to produce. Notably, the recordkeeping requirements apply only while the ETS remains in effect. During that time, they must be treated like any other confidential medical record.
Can OSHA request access to policies and records?
Employers must provide OSHA with access to their written policy and the aggregate number of vaccinated and unvaccinated employees within 4 hours of a request, and any other records and documents “by the end of the next business day after a request.”
What is the deadline for federal contractors to be vaccinated?
The date for the implementation of the federal contractor vaccine mandate Executive Order is also moved from December 8, 2021 to January 4, 2022.
We will provide updates as we continue to closely analyze the ETS. In the meantime, OSHA’s webinar and FAQs on the ETS are extremely helpful (albeit dense) and address a wide range of issues.
In a purported effort to increase vaccinations, the Biden Administration just announced its plan to have OSHA issue an Emergency Temporary Standard requiring employers with one hundred or more employees to ensure their employees are either fully vaccinated or tested for COVID-19 on a weekly basis. The Emergency Temporary Standard will also require mandatory vaccinations for: 1) federal employees; 2) employees of federal contractors; and 3) employees at healthcare facilities receiving Medicare or Medicaid. The Emergency Temporary Standard will impact approximately 100 million American workers.
Since the announcement was made today, and not many details were provided, applicable employers will have some time—possibly a few months—to process and comply with the new requirements. Additionally, while the rule making process is taking place, there will be no shortage of legal challenges to the planned rule. Moving forward, we will keep you advised as to any and all updates on this issue.