On Sept. 9, 2021, President Biden announced a series of Executive Orders (EOs) for new policies to combat the COVID-19 virus. One EO expanded an earlier order requiring that federal employees be vaccinated by Nov. 22 to federal contactors with a deadline for them now set at Jan. 18, 2022. Another EO directed the Centers for Medicare and Medicaid Services (CMS) to issue its COVID-19 Health Care Staff Vaccination Interim Final Rule which became effective Nov. 5 and essentially requires that all staff at Medicare and Medicaid funded facilities be fully vaccinated by Jan. 4, 2022.
The EO with the greatest potential impact for IHA members resulted in the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) which became effective on Nov. 5. It mandates that all companies with 100 or more employees must be able to verify their employees have been fully vaccinated or test negative for COVID-19 each week by Jan. 4, 2022. Other requirements must be met Dec. 5 and here are more details on the ETS:
- Covered employers must ensure that their employees have received the necessary shots to be fully vaccinated (two doses of Pfizer or Moderna, one dose Johnson & Johnson) by Jan. 4. After that, covered employers must ensure that employees who haven’t received the necessary shots begin producing a verified negative test on a weekly basis, and they must also remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider. The ETS does not require employers to provide or pay for tests, but they might have to do so pursuant to other laws or collective bargaining agreements.
- Covered employers are required to provide paid time for their employees to get vaccinated and, if needed, sick leave to recover from side effects that keep them from working.
- Covered employers must ensure that unvaccinated employees wear a mask in the workplace.
- Covered employers are subject to recordkeeping and reporting requirements that are spelled out in the OSHA ETS. While the testing requirement for unvaccinated workers will begin after Jan. 4, employers must be in compliance with other requirements, including providing paid time for employees to get vaccinated and masking for unvaccinated workers, by Dec. 5.
On Nov. 6, the U.S. Court of Appeals for the 5th Circuit issued a stay against the ETS. The ruling came after five states and several private entities sued OSHA. The 5th Circuit extended its stay on Nov. 12 with a blistering opinion against OSHA and the administration and, on Nov. 16, a multidistrict litigation lottery chose the 6th Circuit Court of Appeals to hear a consolidated challenge to OSHA’s ETS from lawsuits filed in the 5th and other federal appeals courts.
The stay will remain in place unless the 6th Circuit rules otherwise, prompting OSHA to suspend the ETS pending future developments. On Nov. 23, the Dept. of Justice (DOJ) filed an emergency motion to the 6th Circuit requesting the stay be lifted, but the court gave plaintiffs until Dec. 3 to respond to the motion and its possible the 6th could reject DOJ’s request and schedule a rare “Initial En Banc Hearing” before the entire panel. This would allow all active judges to weigh in on this high-profile case and also expedite the case on its way to the Supreme Court by limiting the 6th Circuit’s involvement to a single round of briefing and oral argument.