The Occupational Safety and Health Administration (OSHA) issued and Emergency Temporary Standard (ETS) that became effective on November 5, 2021. However, on November 6, the Fifth Circuit Court of Appeals issued an emergency stay of the OSHA ETS, and on November 12 the Fifth Circuit upheld its decision. While the current fate of the OSHA ETS is uncertain, employers are well-advised to become familiar with the ETS and prepare now as if the standard will become effective. 

The Centers for Medicare & Medicaid Services (CMS) also issued another set of requirements for facilities that participate in Medicaid and Medicare. The CMS’ interim final rule (IFR) is an emergency regulation that took effect on November 5, 2021.

OVERVIEW OF OSHA REQUIREMENTS

Employers With 100 or More Employees
The OSHA ETS covers private sector employers with 100 or more employees. Part time workers, employees who work from home and temporary and seasonal employees directly employed by the company must be included in the headcount. The ETS does not apply to federal contractors covered by the federal contractor mandate or to healthcare employers covered by the Healthcare ETS issued by June in 2021.

Employees Must Be Vaccinated or Undergo Weekly Testing
Employers must implement and enforce a written policy requiring either: (1) a mandatory COVID-19 vaccination requirement for all employees; or (2) employees must submit to weekly COVID-19 testing, show a negative test and wear masks while working
 
The vaccine or testing mandate does not apply to employees who work remotely and are not in the presence of other employees or customers, and those who work exclusively outdoors. Employees with legally recognized medical and religious exemptions may be excused from being vaccinated but would be subject to the weekly testing requirement.
 
Provide Employees Reasonable Paid Time Off
Employers must provide employee reasonable paid time off (up to four hours) to get the vaccine and provide reasonable time and sick leave to recover from any negative side effects. Employees who are subject to weekly testing must be removed from the workplace if they cannot produce a negative COVID-19 test or test positive for COVID-19.

Other Requirements
There are significant recordkeeping, document retention and reporting requirements. For example, employers must maintain employee vaccination records and COVID-19 test results for employees subject to weekly testing.

Deadlines for Compliance
Assuming the stay is lifted and no changes are made to the OSHA ETS, employers must comply with most requirements by December 5, 2021. This includes establishing a policy that: (1) requires employees to report positive COVID-19 tests; (2) removes from the workplace any employees who test positive; (3) requires unvaccinated employees to wear a face covering; and (4) provides employees with information about the ETS and certain other information. The deadline for requiring full vaccination status and weekly testing of employees is January 4, 2022.
 
OVERVIEW OF CMS REQUIREMENTS
The CMS IFR applies to workers at facilities that participate in Medicaid and Medicare including, for example, Ambulatory Surgery Centers, Community Mental Health Centers, Home Health Agencies, Hospitals, and Long-Term Care facilities. 

Unless exempted for medical or religious reasons, all workers must be “fully vaccinated” by January 4, 2022. Covered facilities must also develop, by December 5, 2021, a plan and procedure for requiring employees to obtain the vaccine, collecting and storing proof of vaccination status, reviewing exemptions, and implementing additional precautions for any staff who are unvaccinated. There is no weekly testing option for workers in these facilities. 
 
This information is for educational purposes only to provide general information and a general understanding of the law. It does not constitute legal advice and does not establish any attorney-client relationship.