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Jan 06, 2022

Health care employers’ COVID-19 obligations are shifting

COVID-19Safety and Health 

Employers in the health care industry need to be aware of two important developments in federal COVID-19 (coronavirus) rules: (1) the establishment of new compliance deadlines for health care employers in the 25 states that didn’t file lawsuits over the Centers for Medicare and Medicaid Services (CMS) vaccine mandate and (2) the expiration of OSHA’s COVID-19 heath care emergency temporary standard (ETS).

CMS vaccine mandate: Health care providers in the 25 states that didn’t sue over the CMS COVID-19 vaccine mandate have a new set of deadlines for compliance. This includes health care employers in California, Oregon, and Washington. On December 28, 2021, CMS announced its new enforcement timeline and updated the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule FAQs. Covered workers must now receive the first dose of a vaccine by January 27, 2022, and the final dose by February 28, 2022, unless they have been approved for a medical or religious exception. CMS originally published its rule on November 5, 2021, requiring workers in most health care settings that receive reimbursements from Medicare or Medicaid to be vaccinated against COVID-19. The rule was challenged in multiple lawsuits and was briefly halted nationwide, but as we previously reported, the U.S. Fifth Circuit Court of Appeals reinstated the rule in the 25 states that didn’t participate in the lawsuits. Now the U.S. Supreme Court is scheduled to hear oral arguments over the CMS rule on January 7, 2022.

Health care ETS: On December 29, 2021, OSHA finally acknowledged that its COVID-19 ETS for health care workers expired on December 21, 2021, six months after it was issued. OSHA’s statement is posted on its health care ETS web page. The agency intends to issue a permanent infectious disease standard but ran out of time to do so before the ETS expired. OSHA has withdrawn the non-recordkeeping portions of the ETS (including the requirement to pay health care workers when they’re medically removed from work due to COVID-19) but says that the recordkeeping provisions remain in effect, asserting that they were issued under a separate statutory authorization. OSHA is encouraging health care employers to voluntarily comply with the health care ETS and says it will vigorously enforce its existing general duty clause, which requires employers to maintain a safe workplace.

California, Oregon, and Washington already issued their own requirements for health care employers, including COVID-19 vaccine mandates (which weren’t part of OSHA’s health care ETS). For now, the latest COVID-19 vaccination requirements for health care employers in California can be found in the California Department of Public Health (CDPH)’s State Public Health Officer Order, Health Care Worker Vaccine Requirement (December 22, 2021), which requires booster shots for eligible workers. In Oregon, see the Oregon Health Authority (OHA)’s amended temporary rule and accompanying FAQs. In Washington, see the governor’s Proclamation 21-14.3 and accompanying FAQs. The Proclamation was updated November 24, 2021, to add a temporary limited exception for unexpected or emergent situations. Neither Oregon nor Washington have imposed booster requirements, but we anticipate they will at some point. Vigilant will keep members informed.

However, the expiration of OSHA’s health care ETS means health care employers with 100 or more employees who were previously excluded will instead be subject to OSHA’s general “vaccine or test” ETS for large employers. As we previously reported, OSHA expects employers in states such as Idaho and Montana that don’t have their own workplace safety and health agencies to comply with most of its general vaccine mandate by January 10, 2022, and to begin testing workers by February 9, 2022, if they aren’t fully vaccinated. OSHA has directed states such as Arizona, California, Oregon, and Washington, which have their own workplace safety and health agencies, to issue their own vaccine mandates or adopt OSHA’s rule by January 24, 2022. However, all of these expectations could change depending on the Supreme Court’s review of OSHA’s general ETS for large employers. The Supreme Court will hear oral arguments challenging OSHA’s general ETS on January 7, 2022, the same day they will hear oral arguments on the CMS vaccine mandate.

Tips: Depending on the size of their organization and what state they’re located in, health care employers may need to comply with multiple rules: (1) the CMS vaccine mandate (required for Medicare and Medicaid contracts); (2) the OSHA general COVID-19 ETS for employers with 100 or more employees or the corresponding state rules that we expect to see issued in California, Oregon, and Washington by January 24, 2022; and (3) any special state COVID-19 rules for the health care industry. One important distinction is that CMS’s rule focuses exclusively on vaccination requirements and doesn’t offer a testing option (although it recognizes medical and religious exemptions). OSHA’s general COVID-19 ETS addresses not only vaccination but also other obligations which we summarized here, such as paid time off to obtain or recover from a COVID-19 vaccine. Contact your Vigilant Law Group employment attorney if you have questions about your current obligations.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.

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