Federal agencies released anticipated guidance and regulations requiring COVID-19 vaccination for employees by January 4, 2022. The Occupational Safety and Health Administration (OSHA) released the Emergency Temporary Standard (ETS) regarding COVID-19 vaccine mandate and testing rules for employers with more than 100 employees. Similarly, the Centers for Medicare & Medicaid Services (CMS) issued an emergency regulation applicable for Medicare and Medicaid certified providers and facilities.
OSHA’s Emergency Temporary Standard Vaccine and Testing Mandate
The ETS vaccine mandate rule requires covered businesses with at least 100 employees companywide to mandate that employees receive the COVID-19 vaccination, or wear a mask and test for COVID-19 once a week. Effective December 5, 2021, all covered employers must ensure all unvaccinated workers begin wearing masks, and beginning January 4, 2022, all unvaccinated employees must provide a negative COVID-19 test on a weekly basis.
Important Points:
1. Covered employers must develop, implement, and enforce a written mandatory COVID-19 vaccination policy beginning December 5, 2021.
2. As the goal of the ETS is to encourage employees to get vaccinated, the ETS requires that employers provide employees with up to four hours of paid time off to get vaccinated if employees choose to do so during work hours (if necessary).
3. The ETS does not require employees working remotely, from home, or exclusively outdoors to be vaccinated.
4. Employers are required to provide reasonable accommodations for medical or religious exemptions, but accommodations need not be provided if they would cause undue hardship to the business.
5. The ETS does not itself require employers to pay for the cost of weekly testing. However, where an employee qualifies for an exemption under the ADA or Title VII, employers may be required to cover the cost of testing as a reasonable accommodation. Employers should also be aware that requiring employees to pay for their own testing may violate state law and/or FLSA minimum wage laws.
6. Acceptable COVID-19 tests are tests that are approved or authorized, including Emergency Use Authorization (EUA) by the U.S. Food and Drug Administration (FDA), to detect current infection with the virus. The test must be administered in accordance with the authorized instructions.
6.1. Acceptable Test Examples:
6.1.1. Tests administered by a laboratory;
6.1.2. Conducted in a doctor’s office or urgent care facility; or
6.1.3. Self-administered tests that are conducted or observed by an employer or telehealth proctor.
7. Employers must immediately remove employees who test positive for COVID-19 from the workplace. ETS does not require employers to provide paid time for the removal.
8. Fully vaccinated means a person’s status two weeks after completing primary vaccination with either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by January 4, 2022.
9. Proof of vaccine must be maintained as an employee medical record (29 C.F.R. 19.10.1020) while the ETS is in effect.
CMS Emergency Regulation Requiring COVID-19 Vaccination for Health Care Staff
An emergency regulation issued today by the Centers for Medicare & Medicaid Services (CMS) will require certain Medicare and Medicaid certified providers (see list below) to establish a policy ensuring all eligible staff receive the first dose or one-dose of a COVID-19 vaccine prior to providing any care treatment or other services by December 5, 2021. All eligible staff must have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by January 4, 2022. CMS specifically declined to allow daily or weekly testing as a substitute for vaccination. However, the emergency regulation allows for exemptions based on recognized medical conditions or religious beliefs. CMS stated its intention to continue to review the scientific evidence and stakeholder feedback on this issue during the comment period to the Interim Final Rule. These CMS requirements are on top of requirements also being issued by OSHA that apply to large (100+) employers; these CMS requirements will apply even if a court halts implementation of the OSHA rules.
Only the following Medicare and Medicaid certified providers and suppliers are subject to the CMS Interim Final Rule:
- Ambulatory Surgical Centers (ASCs) (§ 416.51)
- Hospices (§ 418.60)
- Psychiatric residential treatment facilities (PRTFs) (§ 441.151)
- Programs of All-Inclusive Care for the Elderly (PACE) (§ 460.74)
- Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children’s hospitals, transplant centers, cancer hospitals, and rehabilitation hospitals/inpatient rehabilitation facilities) (§ 482.42)
- Long Term Care (LTC) Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes (§ 483.80)
- Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs-IID) (§ 483.430)
- Home Health Agencies (HHAs) (§ 484.70)
- Comprehensive Outpatient Rehabilitation Facilities (CORFs) (§§ 485.58 and 485.70)
- Critical Access Hospitals (CAHs) (§ 485.640)
- Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services (§ 485.725)
- Community Mental Health Centers (CMHCs) (§ 485.904)
- Home Infusion Therapy (HIT) suppliers (§ 486.525)
- Rural Health Clinics (RHCs)/Federally Qualified Health Centers (FQHCs) (§ 491.8)
- End-Stage Renal Disease (ESRD) Facilities (§ 494.30)
Next to each provider type above in parentheses are the new vaccination requirements in the Conditions of Participation, Conditions for Coverage, or Requirements for Participation located in Title 42 of the Code of Federal Regulations (CFR). CMS will ensure compliance with these requirements through established survey and enforcement processes. If a provider or supplier does not meet the requirements, it will be cited by a surveyor as being non-compliant and offered an opportunity to return to compliance before additional actions occur.
