OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS)

Two laws were enacted last week that affect healthcare facilities of which you should be aware. Both revolve around COVID-19 vaccination of employees. One is the new OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard and the other is the Centers for Medicare + Medicaid Services (CMS) Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule. Most clients will not be affected by either of these new regulations. If you are unsure if you are covered or exempt from these rules, please read below.

OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS)

The new ETS was published and went into effect on November 5. The first major deadline is December 5. This new ETS will only effect companies that have 100 or more employees. This number is company-wide so if your company has multiple sites, it is the total number of employees minus any staffing agency temporary employees. This is not a vaccine mandate. Employers will need to document vaccination status and provide paid time off for workers to obtain the vaccine and recover from any side-effects. For on-site workers who are not vaccinated by January 5, weekly testing must be implemented.

If you are covered and must comply with the OSHA ETS for Healthcare that went into effect on June 21, your business is exempt from this most recent ETS no matter how many workers you employ. If the Healthcare ETS expires, currently scheduled for December 21, you will then fall subject to the Vaccination and Testing ETS if you have 100+ employees.

If you are covered by the new ETS, please use the following link to OSHA.gov website to view the short webinar on the rule’s requirements. OSHA has also provided the necessary forms and policy statements needed. https://www.osha.gov/coronavirus/ets2

A temporary hold has been placed on OSHA’s new ETS. Excerpts on a National Law Review article are below on the effects of the temporary hold. A link to the full article is included below.

National Law Review https://www.natlawreview.com/article/us-court-appeals-puts-brakes-osha-covid-19-emergency-temporary-standard

On Saturday, November 6, the U.S. Court of Appeals for the Fifth Circuit issued an order temporarily blocking the OSHA Emergency Temporary Standard (“ETS”)…In the meantime, employers must realize that the ETS has not been repealed; it has merely been suspended pending resolution in the courts…The fate of that imminent deadline is unknown. We, therefore, caution against waiting until the Supreme Court (or some other court) has revived the ETS-compliance process, as the deadlines issued by OSHA could remain in effect if courts rule in favor of OSHA…The urge to relax and do nothing until the dust has settled is understandable, but that approach may put employers in a tight spot.

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Centers for Medicare + Medicaid Services (CMS) Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule

According to a news release on November 4, 2021, CMS published an emergency regulation requiring vaccination of eligible staff at health care facilities that participate in the Medicare and Medicaid certified programs.

Here is the list of impacted CMS facilities:

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 supplies, Rural Health Clinics + Federally Qualified Health Centers, and End-Stage Renal Disease Facilities.

Facilities that will be impacted by the vaccine mandate must meet the following requirements:

Establish a policy ensuring all eligible staff have received at least one dose of the 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, by January 4, 2022.

Exemptions are allowed for recognized medical conditions, religious beliefs, or observances.

CMS has provided a complete list of questions and answers as a resource. Based on the following medical and dental practices are generally not covered by this mandate even though they received Medicare and/or Medicaid reimbursement since they are not considered a certified facility.

These regulations do not cover the following facilities because they are not Medicare/Medicaid- certified facilities and are not subject to CMS health and safety regulations:

Assisted Living Facilities, Group Homes, or other similar settings.
Medicaid home care services, such as Home and Community-based Services (HCBS) since these providers receive Medicaid funding but are not regulated as certified facilities.
Physician and Dental offices that receive Medicare/Medicaid reimbursements but are not part of a Medicare/Medicaid certified facility.

A physician with admitting privileges in a CMS Certified facility or hospital will be covered under this regulation. As the facility is subject to the regulations, a physician admitting and/or treating patients in-person must be vaccinated so that the facility is compliant.