Supreme Court to Hold Hearings on Federal Vaccine Mandate

OSHA ETS
The ETS establishes a vaccine-or-test requirement for private employers with 100 or more employees. These employers must require employees to be fully vaccinated against COVID-19 or be tested on a weekly basis and wear face coverings at work.

OSHA issued the ETS on Nov. 5, 2021. It was later blocked nationwide by a federal appeals court and then reinstated by another court. Groups challenging the rule have asked the Supreme Court to stay the reinstatement while they appeal the ruling. OSHA plans to delay enforcement of the ETS until at least Jan. 10, 2022.

CMS Rule for Health Care Workers
The CMS rule requires Medicare- and Medicaid-certified providers and suppliers to establish a policy requiring covered staff members to be vaccinated against COVID-19 unless they are eligible for an exemption based on recognized medical conditions or religious beliefs.

Multiple federal court rulings have resulted in the CMS rule being blocked in a number of states. While CMS has indicated that it will not enforce the rule for now due to pending litigation, the Supreme Court will consider whether the lower court rulings should remain in place during the appeals process.

Employer Takeaway
To demonstrate reasonable good faith efforts to comply between now and January 10, employers subject to the OSHA ETS should follow these steps:

1. Are you covered? Determine if you are covered by the ETS. Work with your workplace safety counsel to answer the following questions: Is your workplace covered by OSHA normally? If so, do you have more than 100 employees nationwide? Or are you exempt because you are covered by either the Healthcare ETS or Federal Contractor mandate?
2. Check vaccine status. If you are covered, gather vaccine status information on your workforce and develop the required vaccination roster for employees, noting whether or not they are fully vaccinated as defined under the ETS. This information (the percentage of vaccinated workers) will allow you to determine if you will mandate vaccines or conduct testing under the ETS.
3. Choose: vaccine mandate or test? Depending on your decision, develop the required mandatory vaccine and/or testing/masking policies required under the ETS – and make sure they are adapted to your own unique workplace. While you don’t necessarily need to implement these policies before January 10, you should be ready to implement them as soon as possible and be prepared to demonstrate good faith efforts to put them into place. Of course, if your organization has low risk tolerance, you could proceed with implementing the policies before January 10. Employers in OSHA state plan locations face the further complication of needing to wait for states to adopt the ETS – OSHA told state plans yesterday that they will need to act by January 24 to adopt the ETS or otherwise ensure that their state plans are “as effective” as the federal rule. The ETS will generally not be effective in state plan states until they do so.
4. Compliance training. Develop programs that would allow you to conduct compliance training for your managers, and deliver information about your policies to your employees as required under the ETS. You may want to conduct this training and start your informational campaign before the January 10 deadline to further demonstrate your good faith efforts.
5. Testing proof. If you decide to provide the COVID-19 testing option, then in addition to implementing the above requirements by January 10, you should be prepared to have unvaccinated employees demonstrate proof of a negative test as of February 9.

Also, please see our compliance update from earlier this month that has a copy of our ETS webinar on demand and sample policies and procedures you can use on your path towards good faith compliance.