Dear Clients and Friends:
Welcome to our Friday Five Newsletter, where we share the Top Five Things You Need to Know This Week to Protect Your Work Community™ (in particular with respect to COVID-19) and help it thrive. Below are recent developments in the law, or questions that we find ourselves answering a lot. As always, please reach out with any questions, we are here for you. And if you are curious about our prior Friday Five or other Newsletters, you will find them here.
(1) Two Federal Courts Have Blocked Enforcement of CMS’s Healthcare Vaccine Mandate.
As you may remember, on November 5, 2021, the Centers for Medicaid and Medicare Services (“CMS”) issued a requirement that various Medicare and Medicaid certified providers and suppliers adopt a vaccine mandate in order to participate in Medicare/Medicaid programs. The vaccine mandate required that employees, volunteers, students, contractors, and other staff who provide services within covered facilities be fully vaccinated against the COVID-19 virus by January 4, 2022. Individuals requesting an accommodation had to do so before December 6, 2021. CMS did not include an alternative of testing in lieu of vaccination.
On November 11, 2021, 10 states filed a complaint in Missouri federal court challenging the enforceability of the CMS mandate, and that court granted the states’ request for an injunction to prevent enforcement of the rule as it relates to healthcare facilities in those 10 states. Another 14 states filed a similar action in Louisiana, and that court similarly has blocked, on a temporary basis, the enforcement of the CMS mandate as it applies to any healthcare facility across the country. Similar actions are pending in other states (we may see another “pick a jurisdiction out of a hat” response like we saw when OSHA’s Emergency Temporary Standard was challenged, stay tuned).
These state court orders are headed to appellate courts, and maybe to the U.S. Supreme Court. Impacted employers once again are left in the precarious position of deciding whether to comply with the January 4, 2022 deadline or wait for the outcome. Conservatively, covered health care employers should be poised to implement the CMS requirement in the event the injunction is lifted, while keeping a close eye on conflicting or complementary state law requirements.
We have developed required and recommended materials for CMS compliance, and are happy to help you tailor those to your unique workplace. Please reach out and we can help developing your program.
(2) A Federal Court Has Blocked the Federal Contractor Vaccination Rules in Certain States.
As you will remember from our October 30, 2021 Newsletter, on September 24, 2021 the Safer Federal Workforce Task Force (“the Task Force”) issued guidance ("the Guidance") for federal contractors and subcontractors on the topic of vaccines and safety.
On November 30, 2021, a U.S. district court judge in Kentucky blocked the federal mandate in Kentucky, Ohio, and Tennessee. The court found that President Biden exceeded his authority under the Federal Property and Administrative Services Act, even for a "good cause" like slowing the spread of COVID-19. The judge’s order included: "While the statute grants to the president great discretion, it strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination."
(3) OSHA Has Extended the Comment Period for the Vaccine and Testing ETS To January 19, 2022.
As you will remember from our November 5, 2021 Friday Five, the federal Occupational Health and Safety Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) implementing President Biden's September 9, 2021 Executive Order mandating vaccines or testing at employers with 100 or more employees. And from our whiplash desk, you will remember from our November 12, 2021 Friday Five that the ETS has been stayed pending the ruling from the Sixth Circuit.
In the interim, OSHA has extended its comment period by 45 days (to January 19, 2022) to allow stakeholders additional time to review the ETS and collect information and data necessary for comment. In practical terms, this means that regardless of the Sixth Circuit’s decision, the ETS will not be enforced before the comment period ends.
Cal/OSHA’s ETS is required to be modified to be consistent with the OSHA ETS within 30 days of the adoption of OSHA’s ETS. In light of the above uncertainty with respect to the OSHA ETS, Cal/OSHA’s ETS for now is unchanged.
(4) CDPH Updated its Infection Control Guidance for Congregate Shelters.
The California Department of Public Health Guidance for these shelters (which include homeless shelters) can be found here. Note that the Guidance includes requirements for vaccine verification, prioritization of non-congregate housing for clients, coordination of sleeping and common areas, ventilation, face coverings, cleaning, client screening and testing, and isolation and quarantine of clients.
(5) CDPH Updated Its Orders Regarding Vaccine Verification at Indoor and Outdoor Mega Events.
- Beginning December 1, 2021, all attendees age 18 and older must provide identification to confirm the individual presenting proof of vaccination or negative test is the attendee entering the facility or venue. Children under 2 years of age are exempt from the testing requirement, consistent with CDC guidance; and
- Acceptable identification is any document that includes the name of the person and photograph, for example a driver's license or identification card (DL/ID), passport, school ID or work ID.
We Are Here For You
We hope this information is helpful as you navigate the recent developments and constantly changing laws. Please stay tuned, we will continue keeping you updated. And please, reach out if you have questions or just want to talk!