Federal Government Issues Regulations Regarding Vaccine Mandates for Private Employers

Recently, we published a blog post describing the numerous state and federal vaccine mandates that have been announced. We noted that we were awaiting Emergency Temporary Standards from the Occupational Safety and Health Administration (“OSHA”) and revised regulations from the Centers for Medicare & Medicaid Services (“CMS”) regarding further vaccine mandates. OSHA and CMS released these regulations on November 4, 2021. Given the broad reach of these new requirements, employers must quickly assess the impact of the requirements on their workforces and, if necessary, implement policy changes. The basic requirements of the new federal regulations are summarized below.

OSHA Mandate

The OSHA ETS applies to employers with 100 or more employees. The key components of the ETS are as follows:

• Vaccination or COVID-19 Testing: Employers are required to determine the vaccination status of all its employees. Any employee that is not fully vaccinated by January 4, 2022, is required to be tested for COVID-19 at least once every 7 days and provide documentation of the test to the employer every week. Employees that fail to comply must be removed from the workplace until a test result is provided.
• Face Coverings: By December 5, 2021, employers must, with limited exceptions, require all unvaccinated employees to wear a face covering when indoors in the workplace.
• Paid Leave: Employers must provide a reasonable amount of time off for employees to receive the vaccination, including up to 4 hours of paid time, including travel time. Employers must also offer reasonable time off and paid sick leave to employees to recover from the side effects of the vaccine.

Failure to comply with the regulations can result in a citation from OSHA and significant fines.

The OSHA ETS has already been challenged in court. The Fifth Circuit has issued an Order temporarily blocking the ETS, stating that the Petition that was filed "gave cause to believe that there are grave statutory and constitutional issues with the mandate." While the future of the ETS is uncertain as a result, employers should still prepare as if the ETS is in place. It may be that the U.S. Supreme Court will need to make the final decision on the legality of the ETS.

CMS Mandate

The CMS regulations mandate vaccination for health care workers employed by most institutions that accept Medicare and Medicaid reimbursement, including hospitals, dialysis centers, and nursing homes, among other entities. Like the OSHA requirement, these employees must be fully vaccinated by January 4, 2022. However, unlike the OSHA rules, the CMS regulations do not provide for a weekly testing option for employees who choose not to get fully vaccinated. The only potential exceptions to the vaccination mandate would be for employees that seek an exemption from the vaccination requirements for medical or religious reasons, which would require the employer to consider an appropriate accommodation in accordance with federal and state law.

Bottom Line

We have summarized the basics of these new federal requirements, but this is only the tip of the iceberg. The new regulations and accompanying guidance span hundreds of pages.

For more information regarding vaccination and testing mandates or assistance with preparing or updating your COVID-19 Protocol, please contact Douglas E. Solomon, Esq., Partner and Chair of the firm’s OSHA Practice Group via email here or 973.533.0777.