The Supreme Court is currently considering the validity of two rules promulgated by federal agencies in the past months regarding vaccines and testing in the workplace. Whether those rules—OSHA’s Emergency Temporary Standard (ETS) and the Centers for Medicare and Medicaid Services’ omnibus vaccine rule for healthcare workers (CMS Mandate or Omnibus Rule)— will be upheld is up in the air. Still, employers should be prepared in case those rules do remain in effect, as their enforcement began on Monday, January 10.
Additionally, at least one other vaccine rule is on hold pending action by the courts, and all these rules interact with CDC guidance to prevent transmission, as well as other state and federal laws. These issues are constantly developing, but this article serves as a primer for the current state of the law and offers guidance for just what employers need to do to be in compliance.
OSHA’s Emergency Temporary Standard
The ETS issued by OSHA in November is the broadest of the vaccine rules, applying to all employers with 100 or more employees. Among other things, the ETS requires that applicable employers implement policies to ensure its employees are either fully vaccinated against COVID-19 or agree to wear a protective face covering and take weekly tests to prove they have not contracted the virus. The burden is on the employer to collect and record this data. Note that the testing requirement applies to all unvaccinated employees, even those with a medical or religious exemption, though collecting documentation of the exemption is useful for employers.
Previously subject to an emergency stay, the ETS is now set to remain in place barring any action by the Supreme Court. OSHA did not issue citations for noncompliance before January 10, and it is currently exercising enforcement discretion for employers making reasonable, good faith efforts to comply until enforcement begins in full force on February 9. After that date, the rule will be fully enforced, including potential fines and citations. There is little explanation of what constitutes good faith, but OSHA has provided that it will consider the extent of the workforce that is fully vaccinated and the steps taken to protect unvaccinated workers.
CMS’ Omnibus Rule
Also set to be debated is the healthcare worker vaccine mandate, issued by the Department of Health and Human Services’ Centers for Medicare and Medicaid Services in November. That rule, a complement to the OSHA ETS, requires the employees of healthcare providers to be vaccinated against COVID-19 without exception. The rule applies to 21 types of providers who utilize Medicare and Medicaid services, effectively applying to all healthcare workers.
That rule is currently enjoined in 25 states and in effect in the other 25. In the states where enforcement is not enjoined, CMS has released a modified timeline for enforcement. Phase 1 requires employees to receive at least one dose of an approved COVID-19 vaccine by January 27, 2022, and to have received both doses by February 28, 2022. Employers who fall under CMS authority should prepare to implement policies addressing vaccination status, as the Omnibus Rule also requires employers to keep record of employee immunization status.
The Federal Contractor Mandate
Another rule – currently not being enforced – is the vaccination mandate created by President Biden’s Executive Order 14042. That rule was stayed nationwide by a Georgia federal court, and is currently on appeal at the Eleventh Circuit. Briefing in that case will not be complete until late February, and oral argument is tentatively scheduled for April, so the stay will remain in effect for at least another 2 months. That rule requires all entities entering into contracts or subcontracts with the federal government to implement mandatory vaccination policies for their employees.
One provision of OSHA’s ETS is that the mandate takes precedence over the ETS, and employers who are subject to the more stringent federal contractor mandate do not have to comply. Thus, if the mandate is upheld, contractors will need to be in compliance at job sites that operate under an applicable contract. However, if the federal contractor rule fails, companies with more than 100 employees will still have to comply with OSHA’s ETS.
CDC Guidance and Quarantine Policies
On December 27, the CDC reduced the isolation period for individuals who test positive for COVID-19 and the quarantine period for individuals exposed to those with a positive test. That guidance provides that the isolation period is 5 days, followed by an additional 5 days of strict mask-wearing once symptoms subside. The quarantine period following a known exposure is now the same (5 days in isolation and 5 days with a mask) for those who have not received a booster shot, or 10 days of strict mask-wearing with no quarantine for those who have been boosted.
Because these agency rules are published in the Federal Register and cannot be amended quickly, the ETS and omnibus rule no longer match the CDC’s new guidance based on research of the omicron variant. Both contain language in keeping with the CDC’s guidance when they were released – 10 days of isolation for all exposures or positive tests.
Still, because the ETS contains a section providing for an exception for the required “isolation guidance,” a recommendation to return to work from a healthcare provider may suffice as proof that the employee remains CDC- and ETS-compliant. OSHA may also release guidance or update the ETS to comply with CDC advice, but best practice for now is likely to include the old guidance (10 days for all) in the employee vaccination policy, with a stipulation that a healthcare provider’s note will suffice to return to work after 5 days.
Considering all this, as of January 10, employers should (at a minimum) implement a policy addressing whichever rules may apply to their industries and employees.
