RBS News

Written By: Evelyn P. Schonberg | 2021-11-12

Update on Federal Vaccination and Testing Mandates

Update on the Federal Vaccination and Testing Mandates

As of the date of this article, the federal government has issued four (4) COVID-19 related vaccine and testing mandates. Below is an update on each mandate. 

On November 4, 2021 OSHA published its Emergency Temporary Standard (ETS) subjecting employers with 100 or more employees to mandate vaccinations or testing/masking.  The effective date of the ETS is December 5, 2021 and employees have until January 4, 2022 to be vaccinated or begin regular testing. You can read more on this ETS here.  [The New COVID-19 Vaccination and Testing Mandate for Employers with 100 or more Employees].  

On November 6, 2021, the Fifth Circuit Court of Appeals granted a temporary stay of the ETS in a case filed by several private and public employers. There are also several other lawsuits that have been and will be filed in various other circuit courts. 

At this point in time, it is difficult to predict with certainty the outcome of the various lawsuits challenging the ETS.  Therefore, it remains best practices to proceed as if the ETS will go into effect on December 5, 2021. This means businesses must determine if they meet the 100-employee threshold and if so, then determine the specifics of their program and draft a compliant policy on or before December 5, 2021. Beginning on that date, employees who are not fully vaccinated must wear masks and maintain physical distance.

We will issue timely updates as new decisions are issued and developments occur.

Pursuant to Executive Order 14042 issued on September 9, 2021, President Biden mandated that employees of federal contractors and all federal employees must be fully vaccinated no later than December 8, 2021. This mandate applies not only to employees working on or in connection with the covered federal contract, but also to all other employees that share workplaces with such employees or who come into contact with them as part of their employment.

On November 1, 2021 and November 4, 2021, the White House issued FAQ’s and a Fact Sheet in which it extended the deadline for covered employees to be fully vaccinated to January 4, 2022.  

The newly issued guidance also provides information on how to deal with employees who simply refuse to be vaccinated. In such cases, contractors are advised to follow their own usual processes for enforcement of workplace policies and/or adopt the federal agencies’ model policy under which such employees are subjected to counseling and education, followed by additional disciplinary measures if necessary. Removal or termination should occur only after “continued noncompliance.” During this process, recalcitrant employees “should not be placed on administrative leave” but, instead, must be required to follow the safety protocols for employees who are not fully vaccinated.  This education and disciplinary process could take weeks so as to avoid unnecessary punishment of employees and disruptions in the performance of work.  

The accommodation process has also been extended and relaxed for examining and determining requests for reasonable accommodations. Significantly, employees of federal contractors may request accommodations for non-disability related considerations (receipt of monoclonal antibodies or convalescent plasma for COVID-19 treatment, for example) in addition to sincerely held religious beliefs and medical conditions. While such requests are pending, the employees may continue to work post-January 4, 2022 so long as they wear facial coverings and maintain physical distance. In the event the accommodation request is granted, federal contractors may consider masking, physical distancing and testing protocols where reasonable for such employees. 

On November 8, 2021, a federal judge on the U.S. District Court for the District of Columbia issued a 41-page decision upholding the federal contractor mandate. The judge held that the government’s interest in curbing the spread of COVID-19 in the federal workforce outweighed any potential injury to the plaintiffs who brought the case. 

Effective June 21, 2021, OSHA issued the COVID-19 Healthcare Emergency Temporary Standard (“Healthcare ETS”), which applies to settings where any employee provides healthcare services or healthcare support services. Exemptions to the Healthcare ETS include non-hospital ambulatory settings where patients are screened and not permitted entry if COVID-19 cases are suspected or confirmed.  Dental and similar offices largely fall under this exemption unless a patient requires oral or similar surgery in a hospital setting. 

A key component of the Healthcare ETS, and one of the most baffling to employers, is the medical removal benefits requirement.  For those subject to the COVID-19 ETS and who employ at least eleven (11) employees, employers must pay for employee absences due to contracting COVID-19, exposure to COVID-19, and for time away from work to obtain vaccinations. Time spent traveling to the vaccination site, registration for the vaccination, obtaining the vaccination itself, and recovery time, if needed, are considered compensable working hours.  The number of employees as of June 14, 2021, regardless of changes thereafter, determines the employer’s compliance obligations for the duration of the ETS.

The Healthcare ETS mandates that employers must continue regular pay and benefits for employees who are working remotely or in isolation due to a removal.  The standard also requires that employers pay an employee completely removed from the workforce. The employer must provide benefits normally provided and must pay the same regular pay the employee would have received had the employee not been absent from work up to $1,400 per week until the employee returns. For employers with 500 or fewer employees nationwide, beginning the third week, the amount is reduced to two-thirds of the regular pay the employee would have received up to $1,000 per week. 

The most controversial aspect of the medical removal benefits requirement is that the benefits must be paid REGARDLESS OF WORK RELATEDNESS. In every other setting, OSHA 300 logs, OSHA reporting of a COVID-19 death, and reporting of a COVID-19 hospitalization, employers are to perform a work-related analysis via the guidelines put forth by OSHA. Inexplicably, medical removal benefits are paid regardless of where an employee contracted or was exposed to the virus. 

For questions or concerns on the Healthcare COVID-19 ETS, please contact Meredith Ullman at mullman@rbslaw.com

On November 4, 2021 the Centers for Medicare & Medicaid Services (CMS) issued an emergency regulation requiring COVID-19 vaccination of eligible staff at healthcare facilities that participate in the Medicare and Medicaid programs. Like the ETS and Executive Order mandates, healthcare workers subject to this rule will need to be fully vaccinated on or before January 4, 2022. In addition, eligible employees must obtain their first dose on or before December 5, 2021.

The CMS Rule applies to providers and facilities who are regulated under the CMS Conditions of Participation, which includes ambulatory surgical centers, hospices, programs of all-inclusive care for the elderly, hospitals, long term care facilities, psychiatric residential treatment facilities, intermediate care facilities for individuals with intellectual disabilities, home health agencies, comprehensive outpatient rehabilitation facilities, critical access hospitals, clinics (rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services), community mental health centers, home infusion therapy suppliers, rural health clinics/federally qualified health centers and end-stage renal disease facilities. 

The CMS rule does not directly apply to other healthcare entities, such as physician offices, that are not regulated by CMS.

The application of the CMS requirements over workers is extremely broad, covering all staff working in the facility regardless of their clinical responsibility or patient contact. In addition, any non-employee who provides treatment or services to the facility, whether under contract or other arrangements, are also covered. Included in the rule are both clinical and non-clinical contractors, such as hospice and dialysis staff, physical therapists, occupational therapists, mental health professionals, and social workers.

Eligible facilities and providers must develop a policy for (1) vaccinating all eligible staff, (2) requesting exemptions and accommodations and (3) tracking and documenting staff vaccinations. While there is no testing option for unvaccinated staff under the CMS rule, it does allow for reasonable accommodations for medical conditions or sincerely held religious beliefs that may include testing in addition to masking and physical distancing. 

We will be issuing timely updates to these separate mandates and, in the meantime, please contact us with any questions or concerns.

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