We move into winter with important updates on COVID-29 regulations impacting employers across the Northland.
The OSHA ETS
The Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) requiring private employers with 100 or more employees to require COVID-19 vaccination or weekly testing and masking for employees that are not vaccinated.
OSHA has the authority to issue emergency temporary standards only if it can show both of the following factors:
• Employees are exposed to grave danger from the hazard.
• The ETS is necessary to protect employees from that danger.
The 5th Circuit Court of Appeals issued and reaffirmed a stay blocking the rule pending litigation, referencing statutory and constitutional issues. Legal challenges to the ETS were filed in multiple courts and the 6th Circuit Court of Appeals was randomly selected to hear a consolidated action.
Among other things, the ETS would require covered employers to establish a mandatory vaccination-or-testing policy, determine the vaccination status of each employee, obtain proof of vaccination, maintain a roster of employee vaccination status, provide employees reasonable paid time off to get vaccinated, and reasonable paid leave to recover from any side effects.
OSHA has suspended implementation and enforcement of the ETS pending future developments in the litigation. However, OSHA stated it “remains confident in its authority to protect workers in emergencies.”Ultimately, the U.S. Supreme Court may determine the legality of the ETS.
Although the outcome of the ETS remains uncertain, employment experts advise employers understand it’s basic requirements.
Medicare and Medicaid participating health care settings
The Centers for Medicare and Medicaid Services (CMS) issued an Interim Final Rule (IFR) to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement. These requirements are expected to impact approximately 50,000 providers and cover a majority of health care workers across the country.
The IFR requires covered staff to be fully vaccinated by Jan. 4, or to possess an approved religious or medical exemption.
In part, the IFR requires that covered entities:
• Comply with federal anti-discrimination laws, including the Americans with Disabilities Act and Title VII of the Civil Rights Act.
• Implement mandatory vaccination policies that include a process to request a medical or religious exemption. Such requests must be submitted by Dec. 5.
• Require documentation of vaccination status.
Notably, the IFR does not allow a weekly testing (rather than vaccination) option. The IFR applies to nonemployees, such as students, trainees, volunteers and individuals who provide care, treatment or other services under contract or other arrangement. The IFR provides a limited exception for staff that work completely remotely.
Penalties for noncompliance may include monetary stipends, denial of payment or termination of the Medicare/Medicaid provider agreement.
The Safer Federal Workforce Task Force indicated that employees of covered contractors must be fully vaccinated no later than Jan. 18. People are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine. The requirements are also facing legal challenges but are not impacted by the stay of the OSHA ETS (discussed above).
The requirements include:
• Vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice or observance.
•Reviewing documentation to prove vaccination status.
• Ensuring that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing, unless an accommodation is granted.
• Designating a responsible party to coordinate implementation and maintain compliance with COVID and workplace safety protocols.
Equal Employment Opportunity Commission (EEOC) guidance requires that covered employers provide reasonable accommodation for employees with disabilities and employees with sincerely held religious beliefs that conflict with receiving a vaccine, unless it would pose an undue hardship.
EEOC online guidance (What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws) provides:
• Information on preventing pandemic-related harassment and discrimination under Section E.
• Information on vaccination questions and information on best practices related to providing reasonable accommodation under Section K.
• Information on religious objections to COVID-19 vaccine mandates under Section L.
With guidance and regulations rapidly evolving, stay updated on how these changes will impact your employees, operations and policies. Continue to consult both internal and external experts to navigate the complexities and regulatory requirements.
Human Resources thought leader Stacy Johnston provides innovative solutions with a mission to support organizations in understanding and engaging their biggest competitive advantage … their employees. Johnston is a licensed attorney and holds the SHRM-CP and PHR credentials.
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