As you’re likely aware, the United States Supreme Court issued two highly anticipated decisions on January 13, 2022 addressing (1) the Occupational Health and Safety Administration (OSHA)’s Emergency Temporary Standard (ETS); and (2) the Centers for Medicare and Medicaid Services (CMS)’s Interim Final Rule requiring healthcare worker vaccinations (also known as the CMS Rule). While, importantly, the Supreme Court did not actually rule on the merits of these two rules (OSHA’s ETS and the CMS Rule), the two Court’s forecast of the respective rules’ “likelihood of success” in the lower courts translates to:
The OSHA ETS remains stayed and will likely not survive further litigation; and the CMS Rule’s stay was lifted and will likely become the law of the land.
Here’s what you need to know and, most importantly, the steps you should consider taking right now:
OSHA’s ETS would have required employers with 100 or more employees to obtain proof of vaccinated status or require once-weekly COVID-19 testing, create and implement COVID-19 policies, provide paid time off for receiving the vaccine or recovering from vaccine side effects, and collect information on the workforce’s vaccination status.
In a nutshell, the US Supreme Court ruled on January 13 that OSHA’s ETS was too broad of an expansion of power for the agency, and would likely not succeed a lower court challenge (the Court said, for example, “OSHA is empowered to “set workplace safety standards, not broad public health measures.”).
As a practical matter, the Supreme Court’s ruling means that employers have some more time to consider whether, and to what extent, any portions of the ETS should be implemented in the workplace. It is reasonable to assume that OSHA will at some point enact an amended rule with either different or more limited requirements regarding vaccinations and COVID-19 policies. It is also possible that the lower court will reverse course on the Supreme Court’s ruling and revive the entire OSHA ETS. The bottom line is, employers should use this time to consider what, if any, measures to take to ensure a safe workplace. Here are some topics you should be thinking about:
- Does your company have COVID-19 policies and procedures? For example, do employees know what to do (or even who to contact) if they are sick or have a close contact?
- Will your company require all current employees or new hires to show proof of vaccination status?
- Will the company offer any incentives for those employees who are vaccinated? If so, what will those incentives be?
- Do you currently keep record of those employees who are vaccinated? Should you?
The CMS Rule
The CMS Rule requires healthcare services that are regulated under CMS standards, including hospitals, nursing homes, rehabilitation clinics, and many other facilities that receive Medicare or Medicaid funds to ensure that all current and future employees (regardless of whether the employee holds a clinical or non-clinical position) be vaccinated.
By January 27, 2022, employers covered by the CMS Rule must require that 100% of staff receive their first dose of the COVID-19 vaccine, except those with a pending exemption request and those whose vaccination was temporarily delayed per CDC recommendations. All staff must be vaccinated by February 28, 2022, subject to certain exemptions for health/disabilities and sincerely held religious beliefs.
Keep in mind that Maine has had a mandatory vaccination policy for certain healthcare workers and healthcare facilities since November 10, 2021, when the final rule took effect. If you have further questions about the implementation of the Maine’s vaccination mandate, the Maine Centers for Disease Control has compiled a helpful list of FAQs on its website HERE.
One interesting distinction between Maine’s vaccine mandate and the federal CMS Rule is that Maine does not presently have a specific exemption for sincerely held religious beliefs, while the CMS Rule does. This is an evolving discrepancy and issue. Should an employee approach you for an exemption due to religious beliefs, you are encouraged to consider every request on an individual basis and consider reaching out to legal counsel.
Although the Supreme Court acted swiftly in issuing its January 13 decisions on the OSHA ETS and the CMS Rule, the decisions by no means represent the “final word” on these regulations. Employers should therefore take this time to reflect on what, if any, safety measures to implement in anticipation of continued federal rule-making and litigation. You are also encouraged to reach out to the employment team at Skelton Taintor & Abbott, as we are closely monitoring these fast-moving developments.