A great deal of uncertainty has surrounded employers’ obligations under the OSHA “vaccine or testing” regulation (the “OSHA ETS”) and the Centers for Medicare and Medicaid Services (“CMS”) interim final rule (the “CMS IFR”) requiring certain health care providers to ensure that its employees are vaccinated for COVID-19. With two recent orders from the U.S. Supreme Court, some of that uncertainty has been removed.

The Supreme Court issued an order on January 13, 2022, staying enforcement of the OSHA ETS. This means that OSHA can no longer enforce the “vaccine or testing” regulation against employers with 100 or more employees (“Large Employers”) that was set to go into effect.

The same day the Supreme Court issued a separate order upholding the CMS IFR. This means that the much smaller subset of Medicare or Medicaid-reimbursed employers will need to take steps to ensure that their employees are vaccinated for COVID-19 in a manner consistent with those regulations.

Employers who are not required to comply with a mandatory vaccination regulation are still entitled to develop and implement mandatory vaccination policies, subject to certain exceptions.

 

OSHA ETS REQUIREMENTS FOR EMPLOYERS WITH 100 OR MORE EMPLOYEES ARE STAYED AND LARGE EMPLOYERS ARE NOT REQUIRED TO MANDATE VACCINES OR REQUIRE TESTING FOR UNVACCINATED EMPLOYEES

On Thursday, January 13, 2022, the Supreme Court issued an order staying enforcement of the OSHA ETS, and sent the case back to the lower courts for further proceedings. This means, at least for the time being, that “Large Employers” who would have been subject to the OSHA ETS (employers with 100 or more employees), will not be subject to the “vaccine or test” requirements of the rule for the foreseeable future. Because the Supreme Court did not invalidate the OSHA ETS outright, it remains possible that the OSHA ETS may be upheld and enforced at some point in the future (or that other requirements will be formally adopted by the normal administrative rule-making process).

Minnesota Occupational Safety and Health Administration (“MNOSHA”) recently adopted the requirements of the federal OSHA ETS in its own rulemaking issued on January 3, 2022. Given the U.S. Supreme Court’s decision, MNOSHA has suspended enforcement of its requirements pending future developments. See MNOSHA Press Release.

 

EMPLOYERS OF MEDICAL PROVIDERS GOVERNED BY THE CENTERS FOR MEDICARE AND MEDICAID SERVICES REMAIN OBLIGATED TO MANDATE VACCINATIONS OF STAFF

For employers subject to the Centers for Medicare and Medicaid Services (“CMS”) Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (the “CMS IFR”), the Supreme Court issued a separate order on January 13, 2022, that upheld the regulation (by reversing a stay issued by a lower court that applied in some 25 states). On its website, CMS has issued guidance to those certain Medicare or Medicaid reimbursed employers in the healthcare industry who are subject to the CMS IFR (“Healthcare Employers”).

 

**Please note that the CMS guidance (the “Guidance”) was published on December 28, 2021, before the U.S. Supreme Court issued its order upholding the CMS IFR. The Guidance notes that certain states are not subject to the CMS IFR “at this time.” We believe CMS is now free to enforce its mandatory vaccination regulations in all states—and that this language no longer applies—given the U.S. Supreme Court’s decision upholding the CMS IFR.**

 

To assist Healthcare Employers in understanding the requirements of the CMS IFR, CMS published a PDF that contains general guidance to employers subject to the CMS IFR mandatory vaccination requirement. In summary, Healthcare Employers must ensure, within thirty (30) days following the date of the Guidance (i.e., January 27, 2022), that:

• Policies and procedures are developed and implemented for ensuring that all facility staff, regardless of clinical responsibility or patient or resident contact are vaccinated for COVID-19; and
• 100% of staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted qualifying exemption, or identified as having a temporary delay as recommended by the CDC, the facility is compliant under the rule; or
• Less than 100% of all staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC, the facility is non-compliant under the rule. The facility will receive notice of their non-compliance with the 100% standard. A facility that is above 80% and has a plan to achieve a 100% staff vaccination rate within 60 days would not be subject to additional enforcement action. States should work with their CMS location for cases that exceed these thresholds, yet pose a threat to patient health and safety. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.).

Healthcare Employers are subject to additional compliance requirements at both the sixty (60) day mark (i.e., February 26, 2022), and the ninety (90) day mark (i.e., March 28, 2022), which are detailed in the Guidance. In short, CMS has indicated that it intends to begin taking enforcement action against Healthcare Providers who are remain less than fully compliant with their employee vaccination obligations on March 28, 2022.

In addition, CMS also published PDFs that cover specific requirements for Healthcare Employers, depending on the particular CMS reimbursement program in which the employer participates, as follows:

416. Ambulatory surgical centers (42 C.F.R. § 416.51);
417. Hospice care providers (42 C.F.R. § 418.60); C
418. Inpatient psychiatric service providers (42 C.F.R. § 441.151);
419. Programs of all-inclusive care for the elderly (PACE) (42 C.F.R. § 460.74);
420. Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children’s hospitals, transplant centers, cancer hospitals and rehabilitation hospitals/inpatient rehabilitation facilities) (42 C.F.R. § 482.42);
421. Long-term care facilities (including skilled nursing facilities and nursing facilities, generally called nursing homes) (42 C.F.R. § 483.80);
422. Intermediate care facilities for individuals with intellectual disabilities (42 C.F.R. §§ 483.430; 483.460);
423. Home health services (42 C.F.R. § 484.70);
424. Comprehensive outpatient rehabilitation facilities (42 C.F.R. §§ 485.58; 485.70);
425. Critical access hospitals (42 C.F.R. § 485.640);
426. Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services (42 C.F.R. § 485.725);
427. Community mental health centers (42 C.F.R. § 485.904);
428. Home infusion therapy suppliers (42 C.F.R. § 486.525);
429. Rural health clinics/federally qualified health centers (42 C.F.R. § 491.8); and,
430. End-stage renal disease facilities (42 C.F.R. § 494.30).

If your organization falls under one of these reimbursement programs, please review the CMS guidance specific to your organization for more information about your specific compliance obligations. If you have questions about your organization’s obligations arising under the CMS IFR, one of the attorneys on the employment team at Lind, Jensen, Sullivan & Peterson, P.A. would be happy to assist you.

 

EMPLOYERS REMAIN FREE TO IMPLEMENT THEIR OWN MANDATORY VACCINATION OR TESTING POLICIES, SUBJECT TO POSSIBLE MEDICAL OR RELIGIOUS EXEMPTIONS

Although Large Employers not subject to the CMS IFR will not be required by law to ensure their employees are either vaccinated or tested weekly, all employers – regardless of size – remain free to develop and implement policies requiring employees to be fully vaccinated as a condition of their employment. Such policies must contain processes for considering requests for exemptions from the mandatory vaccination requirement on the basis of the employee’s medical history, disability status, or sincerely-held religious belief.

 

If you have any employment or other questions regarding the ongoing COVID-19 pandemic as it relates to your employees, please do not hesitate to contact our employment team at Lind Jensen Sullivan & Peterson, P.A. by email or phone at (612) 333-3637.

Bill Davidson – Bill.Davidson@lindjensen.com
(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com
(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com
(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com
(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com
(612) 746-0174