Update on Status and Implementation of CMS and OSHA Vaccine Mandates

Posted on December 23, 2021 by Jonathan Lips

Our team is keeping a close watch for news about the CMS staff vaccination mandate and the OSHA vaccine-or-test emergency temporary standard. Here is the latest information about the status and enforcement of these two requirements.

COVID-19 Health Care Staff Vaccination Rule

The CMS staff vaccination mandate is currently blocked by court order in 25 states (10 states participating in a lawsuit filed in Missouri, 14 states participating in a suit filed in Louisiana, and Texas), but the rule is not blocked in the remaining 25 states, including Minnesota. 

The Biden Administration has formally appealed to the U.S. Supreme Court to have the injunctions lifted in the states where the rule is blocked. The court has set a Dec. 30 deadline for those states to respond to the Administration's appeal, meaning we will not have a legal ruling in this case until sometime after that date.

As of this writing, CMS memorandum QSO-22-04-ALL remains in place, which states that the agency will not enforce the new vaccination mandate while court-ordered injunctions are in place prohibiting enforcement. 

CMS could choose to implement and enforce the rule in Minnesota and the other 24 states where the rule is no longer blocked, but it has not as yet signaled an intention to do so. If CMS does choose to move forward in states where the rule is not blocked, we suspect they will extend the original Jan. 4 enforcement date, but we don’t know that for certain or what the extended date might be.

While we watch for CMS to provide additional information, we encourage nursing facilities to continue preparing for the mandate to be implemented and enforced so that you can act quickly to implement if CMS indicates that it will enforce the rule in Minnesota and elsewhere.

OSHA Vaccinate-or-Test Standard

On Dec. 17, a federal appeals court granted the Biden Administration's petition to remove the nationwide injunction blocking implementation and enforcement of the OSHA Vaccine and Testing Emergency Temporary Standard (ETS) that applies to employers with 100 or more employees.

Several groups of challengers to the OSHA vaccine mandate immediately filed emergency applications with the U.S. Supreme Court asking the high court to reverse the Sixth Circuit decision and restore the nationwide injunction that was previously in place.  The court has set a deadline of Dec. 30 for the Biden administration to submit arguments in response, meaning we will not have a legal ruling in this case until sometime after that date.

Meanwhile, OSHA has decided to move forward with implementation and enforcement of the ETS, and it identified revised compliance dates in a statement published on the ETS website: "To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for non-compliance with any requirements of the ETS before Jan. 10 and will not issue citations for non-compliance with the standard's testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance."

Following that federal announcement, Minnesota OSHA (MNOSHA) posted a notice this week that it intends to adopt the ETS by reference as soon as Jan. 3 and follow the revised compliance timeline identified by federal OSHA authorities.

MNOSHA will offer informational webinars on Tuesday, Jan. 4 at 11 a.m. (join online by clicking here or by phone at 415-655-0003 or 855-282-6330 and enter code 2491 897 0611) and on Friday, Jan. 7 at 10 a.m. (join online or by phone at 415-655-0003 or 855-282-6330 and enter code 2492 459 4165).

We will provide additional information as soon as it is available.  Meanwhile, employers covered by the OSHA Vaccine ETS may continue to develop policies and programs with an eye to the revised Jan. 10 and Feb. 9 compliance deadlines.

Interplay Between Rules and Standards

OSHA vs. OSHA: We also learned this week that the separate emergency standard that OSHA published in June 2021 – the COVID-19 Healthcare ETS – remains effective in Minnesota until Jan. 20, and MNOSHA will continue to enforce it until that time.  That standard, which establishes protections for workers in settings where healthcare and health support services are provided, is effective for a temporary period of six months. Because MNOSHA adopted the standard effective July 19, it will remain in place until Jan. 20. Even though federal OSHA authorities published the Healthcare ETS effective June 21, Minnesota's timeline trumps. Because it became effective here in July, it remains in effect until January.

This timing is important because covered settings must comply with it while it is in effect and because the OSHA Vaccine-or-Test ETS does not apply to settings that the Healthcare ETS covers. When the Healthcare ETS expires on Jan. 20, the Vaccine-or-Test ETS will apply in those settings for employers with 100 or more employees. Today, federal OSHA has not released any information about whether it will extend or replace the Healthcare ETS. We will update members if there is any change on this front.

CMS vs. OSHA: The question has arisen whether nursing facilities are subject to the OSHA Vaccine-or-Test ETS while CMS is not implementing or enforcing its own staff vaccination mandate because of the injunctions in place. At this time, we believe the answer to that is no, but we are following the issue very closely. The CMS FAQs state that the CMS rule "takes priority over" the other federal regulations that might apply – like the OSHA vaccine rule. CMS has not provided any further guidance, and please know this question is at the top of the priority list for the LeadingAge national team.

We will keep you posted on these legal and regulatory fronts and do whatever we can to provide as much clarity as we can amid the confusion surrounding these legal challenges.