The Occupational Safety and Health Agency (OSHA) and the Center for Medicare and Medicaid Services (CMS) published highly anticipated rules requiring covered employers to implement Covid-19 vaccination mandates for their employees.
OSHA EMERGENCY TEMPORARY STANDARD (ETS)
The ETS covers most private employers with 100 or more employees. In addition, states with approved safety agencies must implement standards that meet or exceed the requirements in the ETS within 30 days of the effective date. For states with safety agencies covering only government employees, such as New York, the safety agency’s standards will apply to local and state government workers.
The ETS does not apply to employers that are covered by: (1) the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or (2) healthcare service providers that are covered by the Healthcare ETS, while that ETS is in effect (many of these health care service providers will be covered by the CMS rule discussed below).
The requirements of the ETS also do not apply to employees of covered employers who: (1) do not report to a workplace where other individuals, such as coworkers or customers, are present; (2) are working from home; or (3) work exclusively outdoors.
Covered employers must develop, implement, and enforce a mandatory Covid-19 vaccination policy. Covered employers also must provide paid time off for workers to get vaccinated and recover from any side effects. Employers may elect to allow employees to undergo regular Covid-19 testing in lieu of being vaccinated as long as they also wear a face covering at work. The ETS does not require employers to pay for the cost of testing, but other laws could.
The ETS acknowledges that employees may be entitled to accommodations for disabilities and religious beliefs under the Americans with Disabilities Act (ADA) and Title VII, but does not offer detailed guidance regarding accommodations. The ETS notes that the Equal Employment Opportunity Commission, not OSHA, is responsible for enforcing the ADA or Title VII.
Covered employers must also comply with various record keeping and notice requirements. For example, employers must survey employees’ vaccination status, obtain proof of vaccination, and maintain an updated roster. Employees must be permitted to request information about their own vaccination records, as well as the aggregate number of employees that have been vaccinated. In addition, employers must provide employees with educational materials regarding the ETS and vaccines.
The ETS takes effect Friday, November 5, and employers have 30 days from the effective date to comply, with the exception of the testing requirement for unvaccinated employees, which takes effect 60 days after the effective date. In other words, employers must implement the necessary policies to comply with the ETS by December 5, and all employees must be fully vaccinated or submit to regular testing after January 4, 2022.
Employers that fail to enforce the requirements of the ETS can face fines of up to $13,653 for each serious violation and $136,532 for a willful violation.
The CMS Rule was announced in conjunction with OSHA ETS, and it covers workers at a broad range of facilities that receive Medicare and Medicaid funding, including hospitals, ambulatory surgery centers, dialysis facilities, home health agencies, and long-term care facilities. Covered facilities are required to have a process or policy in place ensuring that all applicable staff are vaccinated against Covid-19.
Like the OSHA ETS, the vaccination requirement does not apply to employees working remotely, provided that they do not have any interaction with other employees or customers. Unlike the OSHA ETS, however, the CMS Rule does not allow employees to undergo regular testing as an alternative to receiving the vaccination. Employees may be entitled to accommodations for disabilities and religious beliefs under the ADA and Title VII, but accommodations should not be granted unless required by law.
The CMS Rule takes effect November 5, and employees must have received at least one dose of a primary series or a single dose Covid-19 vaccine within 30 days of the effective date. Within 60 days of the effective date, all workers must have completed the primary vaccination series. Employees are not considered fully vaccinated until 14 days after the final vaccine dose, but receiving the final dose within 60 days of the effective date is still considered sufficient to comply with the CMS Rule.
Facilities failing to comply with the rule can face monetary penalties and even termination from the Medicare and Medicaid program. CMS indicated that termination would generally only occur after providing the facility with an opportunity to make corrections and comply with the rule.
OSHA and CMS are accepting comments, and the rules could be updated after receiving comments. In addition, several states’ attorneys general have announced plans to sue over the rules. For now, employers should determine whether they are covered by the OSHA ETS or CMS Rule and prepare a policy that complies with the applicable requirements.
This alert does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.