Federal agencies announce enforcement of vaccine rules as Supreme Court prepares to hear arguments in legal challenges | Donelson Baker


Recent announcements from the Occupational Safety and Health Agency (OSHA) and the Centers for Medicare and Medicaid (CMS) provide clarity on next steps in enforcing existing federal vaccine and testing mandates, although the legal landscape continues to change.

What does OSHA’s announcement of December 27, 2021 mean?

In our previous alert, we summarized that effective December 17, 2021, the Sixth Circuit Court of Appeals dissolved the temporary stay previously placed on OSHA’s Large Employer Emergency Temporary Standard (ETS) by the fifth circuit. As a result, OSHA then implemented a new enforcement schedule that required covered employers to comply with the vast majority of the ETS by January 10, 2022.

Prior to releasing the ETS for large employers, in June 2021, OSHA adopted its Temporary Emergency Healthcare Standard (Healthcare ETS) to protect workers from COVID-19 in workplaces. settings where they provide health care or health care support services. The healthcare ETS was set to expire on December 21, 2021; however, OSHA remained silent after the expiration date, leaving employers to wonder whether or not it remained in effect. On December 27, 2021, OSHA announced that it had decided to let the healthcare ETS expire while it worked on a permanent standard. However, OSHA said it will continue to “vigorously” enforce standards within the healthcare ETS, such as standards for personal protective equipment (PPE) and respiratory protection, under its general obligation clause.

This is an important development because the ETS for large employers did not apply to providers covered by the healthcare ETS while the healthcare ETS was in effect. Thus, health care providers were generally shielded from mandatory ETS compliance by large employers. With the expiration of the healthcare ETS, these providers may now be subject to the large employer ETS, which OSHA currently enforces. Large employers are expected to comply with most ETS requirements for large employers by January 10, 2022. Note that some “state plan” states have adopted the ETS requirements for healthcare health, and some of these state-level requirements have yet to be met. expired. Tennessee, for example, adopted its version of the Health Care ETS in August 2021, with an expiration date of February 20, 2022. Employers in states in the state plan may still be subject to the temporary emergency health care standards. health care in their state.

What does the CMS announcement of December 28, 2021 mean?

In our previous alert, we summarized that CMS had announced that it would suspend enforcement of the CMS vaccination mandate in light of existing federal preliminary injunction orders. As of December 17, 2021, preliminary injunctions against the CMS vaccine mandate exist in 25 states (requesting states). The CMS vaccination mandate remains legally valid and enforceable in the remaining 25 states, namely California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts , Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin; as well as the District of Columbia and US territories (non-claimant states).

On December 28, 2021, CMS announced that it would begin enforcing the CMS vaccination mandate in non-requesting states that are not subject to suspension orders. The compliance deadline has been amended as follows:

  • Phase 1: By January 27, 2022, all eligible staff must have received at least the first dose of a two-dose vaccine, have received their one dose of a single-dose vaccine before providing care , treatment or other services for the facility or its patients, or have been granted an exemption.
  • Phase 2: By February 28, 2022, all eligible personnel must have completed the vaccine series (if they received the two-dose vaccine) or have been granted a waiver.

On December 28, 2021, CMS also issued a memorandum to all directors of state investigative agencies. The memorandum makes it clear that facility investigators in requesting states should not undertake any effort to implement or enforce CMS’s vaccine mandate.

For investigators at facilities located in non-requesting states, by January 27, 2022, CMS expects 100% of staff to have received at least one dose of COVID-19 vaccine, or have a pending request or have obtained a qualifying exemption or identified as having a temporary delay as recommended by the CDC, in order to comply with the CMS vaccination mandate. If a facility has less than 100% compliance, it will receive a notice of non-compliance. If the facility is above 80% compliance and has a plan to achieve full compliance within 60 days, CMS has directed that no further enforcement action be taken.

By February 28, 2022, CMS expects 100% of all staff at facilities in non-prompting states to have received at least one dose of a single-dose vaccine, or all doses of a multiple-dose vaccine series, or have been granted a qualifying waiver or identified as having a temporary delay as recommended by the CDC. If a facility has less than 100% compliance, it will receive a notice of non-compliance. If a facility is above 90% compliance and has a plan to achieve full compliance within 30 days, CMS has directed that no further enforcement action be taken.

What happens next?

There may be more changes to come. The U.S. Supreme Court is scheduled to hear oral arguments on January 7, 2022 in the CMS Warrant and OSHA Large Employer Warrant cases. It is possible that a U.S. Supreme Court decision will come before the original deadline of January 27, 2022 under the CMS mandate for vaccines. As always, we will continue to monitor these cases as they unfold and continue to provide you with regular updates.

Covered healthcare organizations should be prepared to move forward with compliance with the CMS Vaccination Mandate and/or Large Employer ETS as both federal mandates are now legally enforceable in some jurisdictions , and both federal agencies have announced they are resuming enforcement where permitted by law. . As federal agencies investigate compliance, they will likely seek detailed documentation of an institution’s plans, policies, and programs to increase compliance with the CMS Immunization Mandate and/or the large HTAs. employers. Therefore, it is important that institutions carefully document their internal policies in order to mitigate the penalties that could be imposed in the event of a finding of non-compliance. Health care facilities should seek advice on how to communicate with their staff by discussing the legal and regulatory environment in your respective state or states with an attorney who specializes in health care or labor law and employment.


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