OSHA Emergency Temporary Standard and CMS Interim Final Rule on Vaccination Requirements Released
On November 4, the Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Department of Health and Human Services’ Centers for Medicare & Medicaid Services (CMS) issued their highly anticipated Emergency Temporary Standard (ETS) and interim final rule (IFR) setting vaccination requirements for employers with 100 or more employees and healthcare workers, respectively. Under the new policies, covered employers with 100 or more employees, healthcare workers at facilities participating in Medicare or Medicaid, AND federal contractors requiring vaccinations under Executive Order 14042 (EO) will be required to be fully vaccinated — either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson — by January 4, 2022.
A Fact Sheet announcing the new vaccinations rules provides the following information on the OSHA ETS, CMS IFR and federal contractor vaccination requirements:
OSHA Emergency Temporary Standard
In lieu of full vaccination, the OSHA ETS for employers with 100 or more employees (covered employers) also offers the option for unvaccinated employees to produce a verified negative COVID-19 test to employers on at least a weekly basis. OSHA does clarify, however, that the ETS does NOT require employers to provide or pay for tests, but notes that employers may be required to pay for testing due to other laws or collective bargaining agreements.
The ETS also establishes policies that require covered employers to provide paid time off (PTO) for their employees to get vaccinated and, if needed, sick leave to recover from side effects that keep them from working. Additionally, all covered employers will be required to ensure that unvaccinated employees wear a face mask in the workplace. While the testing and vaccination requirements will begin after January 4, the ETS states that covered employers must be in compliance with the PTO for vaccination and masking for unvaccinated workers requirements by December 5, 2021.
Importantly, OSHA clarifies in the ETS that the rule will not apply to workplaces already covered by the CMS IFR, as well as the federal contractor vaccination requirement set forth by President Biden’s EO and the Safer Federal Workforce Task Force’s vaccination guidance.
Healthcare Interim Final Rule
According to CMS, the IFR requiring full vaccination of healthcare employees applies to employees regardless of whether their positions are clinical or non-clinical and includes employees, students, trainees and volunteers who work at a covered facility that receives federal funding from Medicare or Medicaid. It also includes individuals who provide treatment or other services for the facility under contract or other arrangements. Among the facility types covered by the IFR are hospitals, ambulatory surgery centers, dialysis facilities, home health agencies and long-term care facilities.
Federal Contractor Vaccination Executive Order
In an effort to streamline implementation of the vaccination requirements, the Biden administration is also announcing that the deadline for previously issued federal contractor vaccination requirements will be extended to January 4, 2022, setting one deadline across the three different vaccination policies. The vaccine requirement for federal contractor compliance was previously set for December 8, 2021.
Additionally, as mentioned above, federal contractor employers who may otherwise fall under the OSHA ETS covered employer definition will not be required to follow the rules established under the ETS and must continue compliance with the vaccination guidance and requirements set forth by the EO and Safer Federal Workforce Task Force for federal contractors.
State and Local Preemption
Early reports of the rules also state that both the OSHA ETS and CMS IFR make it clear that their requirements “preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks or testing.” More information is likely to follow.
Additional information is likely to arise as we learn more from the actual text of the ETS and IFR. CUPA-HR will keep members apprised of all new information.