Exclusion Screening

Preparing for the OSHA ETS and CMS Vaccine Mandate


Emptech's founder, Jeff Aleixo


Jeffrey Aleixo

osha ets, cms vaccine mandate, healthcare compliance

On January 13, 2022, the Supreme Court released decisions regarding the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) issued late last year, and the vaccination mandate for certain healthcare workers issued by the Centers for Medicare and Medicaid Services (CMS).  Both the OSHA ETS and the CMS vaccine mandate were implemented in response to the COVID-19 pandemic.

The Supreme Court blocked OSHA’s requirement for employers with 100 or more employees to implement either a mandatory vaccine policy for most employees or a policy requiring unvaccinated workers to produce a weekly negative COVID-19 test and wear a mask in the workplace. At the same time, it upheld the CMS vaccine mandate for healthcare workers. The CMS Rule was issued on November 4, 2021, and requires COVID-19 vaccination for workers at healthcare facilities that participate in Medicare and Medicaid programs.

Therefore, most large employers do not need to worry about complying with the OSHA standard, but should closely monitor further developments at the federal level. Also, they need to consider state and local vaccine guidance and mandates when deciding whether to implement vaccination and testing policies.

Blocked Nationwide Enforcement of the OSHA ETS

The OSHA’s ETS was stayed nationwide on November 12, 2021, by order of the U.S. Court of Appeals for the Fifth Circuit. The various legal challenges to the ETS were subsequently consolidated in the U.S. Court of Appeals for the Sixth Circuit, which dissolved the Fifth’s Circuit stay on December 17, 2021. After the Sixth Circuit’s action, several emergency appeals were filed with the United States Supreme Court requesting the Court to reinstitute the stay. The Supreme Court received briefs and heard oral arguments on January 7, 2022. Finally, in a per curiam opinion, the Supreme Court blocked further enforcement of the ETS.

According to the Supreme Court, OSHA may mandate workplace safety measures, but not sweeping public health measures. In its holding, the Supreme Court found that the ETS exceeds the scope of OSHA’s authority because, among other things, it was not narrowly focused on occupational risks faced by workers, and was more akin to a general public health measure. However, while halting enforcement of the OSHA ETS nationwide, the Supreme Court sent the matter back to a lower federal court of appeals for further litigation. In other words, there will still be many more legal filings before this matter is fully resolved, making it necessary for employers to pay attention to additional updates.

Use this detailed exclusion screening guide to get an overview of existing healthcare-related regulations, the risks and potential consequences of a failure to comply with the regulatory framework, and how best to comply and avoid these risks.

CMS Vaccine Mandate for Healthcare Workers

In contrast to the OSHA ETS, the Supreme Court upheld the CMS vaccine mandate for health care workers. According to the Supreme Court, requiring COVID-19 vaccinations fits neatly within Congress’s conferral of authority for health care providers receiving the federal funds. In other words, ensuring providers take steps to avoid transmitting COVID-19 to their patients is consistent with the medical profession’s fundamental principle of doing no harm.

After the issuance of the CMS Rule in November, it was legally challenged. Lower courts issued multiple injunctions enjoining the CMS Rule in Alabama, Alaska, Arizona, Arkansas Georgia, Idaho, Iowa, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, New Hampshire Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming. The CMS previously announced it would enforce the CMS Rule in the remaining 25 states and the District of Columbia where the rule was not enjoined. The Texas injunction was not before the Supreme Court but the CMS has sought to lift the Texas injunction in light of the Supreme Court decision.

According to the CMS Memorandum QSO-22-09-ALL, the following compliance deadlines apply to Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming:

  • By February 14, 2022, all covered staff must have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine or have a pending request for, or have been granted, a qualifying exemption;
  • By March 15, 2022, all covered staff must have received the second dose of the two-dose COVID-19 vaccine, if applicable, or have been granted a qualifying exemption.

When it comes to all other states, including the District of Columbia, the following compliance deadlines apply:

  • By January 27, 2022, all covered staff must have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine or have a pending request for, or have been granted, a qualifying exemption;
  • By February 28, 2022, all covered staff must have received the second dose of the two-dose COVID-19 vaccine (if applicable) or have been granted a qualifying exemption.

The CMS Vaccine Mandate applies to the following Medicare and Medicaid certified providers and suppliers:

  • Home Health Agencies;
  • Home Infusion Therapy Suppliers;
  • Hospices;
  • Long Term Care Facilities;
  • Hospitals;
  • Ambulatory Surgery Centers;
  • Community Mental Health Centers;
  • Comprehensive Outpatient Rehabilitation Facilities;
  • Critical Access Hospitals;
  • End-Stage Renal Disease Facilities;
  • Intermediate Care Facilities for Individuals with Intellectual Disabilities;
  • Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services;
  • Psychiatric Residential Treatment Facilities;
  • Programs for All-Inclusive Care for the Elderly Organizations; 
  • Rural Health Clinics/Federally Qualified Health Centers.

The CMS vaccine mandate applies to eligible staff working at a facility that participates in Medicare and Medicaid programs, regardless of clinical responsibility or patient contact.

Next Steps for Employers

Despite blocked OSHA ETS enforcement, there is still the possibility of formal rulemaking on this topic. In the meantime, employers should decide on their approach to mandates and testing. Given the recent Omicron surge, some employers may choose to proceed with a mandate while others may wish to adopt a vaccine or test program. Either way, it is important to monitor further activities on the topic and check for any state or local requirements that may impact vaccinations, testing, and other COVID-19 measures. On the other hand, employers governed by the CMS vaccine mandate should immediately prepare for the upcoming vaccination deadlines covering their workers, and adhere to the requirements laid out in the mandate. Meeting the changing requirements for workplace safety in addition to other healthcare industry obligations is complex and time-consuming. However, integrating proper software solutions can simplify the entire process and help healthcare companies ensure compliance while eliminating the risk of fines and penalties.

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