The federal government giveth, and the courts taketh away...the federal vaccination mandates are once again in limbo! Our legal update below covers the temporary injunction against the federal ETS for large employers, the extension of the federal contractor vaccine deadline, and the upcoming Medicare/Medicaid vaccination mandate.
On November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced new emergency temporary standards (“Federal ETS”) for large public and government employers with 100 or more employees nationwide. The Federal ETS requires covered employers to implement either a mandatory vaccine policy, or an optional policy combined with additional safeguards for unvaccinated workers. Under the Federal ETS, Cal/OSHA is required to issue revised standards by December 5, 2021, which will either mirror or be more restrictive than the Federal ETS.
As quickly as these new guidelines were released, they were put on hold again. On Saturday, November 6, 2021, the United States Court of Appeals (5th Circuit) granted a temporary stay of the Federal ETS until further action by the Court. Note that this decision does not revoke the federal ETS, but merely puts it on hold pending further action.
Other challenges to the Federal ETS have been filed and more may be forthcoming. For now, the Government (OSHA and related government entities that were involved with the creation of the Federal ETS) must respond by the close of business on November 8, 2021 and the petitioners have until the close of business on November 9, 2021 to submit a reply.
Employers are now in a holding pattern until the Court of Appeals decides if it will grant a permanent injunction (stopping enforcement of the Federal ETS), or if some or all of the Federal ETS will be permitted to go into effect. Employers are encouraged to start reviewing the requirements of the Federal ETS (for the full Federal ETS, click here; for the Federal ETS FAQs, click here. However, employers should hold off on implementing any new policies or procedures until the injunction issue is resolved.
On November 3, 2021, in a White House briefing (click here), a Senior Administration Official announced that the December deadline for employees of federal contractors to be fully vaccinated will be extended to align with the deadline established by the new Federal OSHA ETS and the CMS rules. The deadline for employees of federal contractors to receive their final vaccination dose under the federal ETS is now January 4, 2022.
Also on November 4, 2021, The Centers for Medicare & Medicaid Services (“CMS”) released a Vaccination Interim Final Rule (“IFR”) requiring workers at healthcare facilities participating in Medicare or Medicaid to be fully vaccinated. This rule was not included in the injunction that halted the Federal ETS, although it might be challenged in a separate proceeding.
By December 6, 2021, covered employers must develop a vaccination policy. Also by December 6, 2021, all eligible staff must receive at least one dose of a COVID-19 vaccine (the first dose in a two-dose series (Pfizer/Moderna) or a single dose for a one-dose vaccine (J&J) prior to providing any care, treatment or other services to patients. All eligible staff (unless a reasonable accommodation is required) must be fully vaccinated by January 4, 2022.
Covered employers must track and document the vaccination status of each staff member, including exemptions and accommodations. The official publication is available here. It includes additional information about the new guidelines and different types of facilities.
LightGabler will provide a further update on the status of the Federal ETS when it is available. Stay tuned!