OSHA, CMS Announce New COVID-19 Vaccination Rules for Employers, Health Care Providers

Earlier today, the U.S. Department of Labor's Occupational Safety and Health Administration and the federal Centers for Medicare & Medicaid Services released their interim final rules regarding new employer requirements for COVID-19 vaccination. Both rules have final deadlines of Jan. 4, 2022, and preliminary deadlines of Dec. 5, 2021. In the following article, we discuss the OSHA rule as it applies to employers and the CMS rule as it applies to Medicare- and Medicaid-certified facilities.

OSHA COVID-19 Vaccination Rule for Employers

OSHA released its interim final rule regarding the employer requirements for COVID-19 vaccination. The release, which spans 490 pages, obligates employers with 100 or more employees to implement mandatory COVID-19 vaccination or testing programs for all employees except those who do not report to workplaces with other coworkers or customers, who work from home or who work exclusively outdoors.

Despite the length of the rule — much of which is devoted to the legal justification for the emergency measures — the text of the rule itself covers just about 13 pages. The principal features of the rule have been widely discussed and anticipated since the initial announcement in September. Covered employers must:

• Maintain employee rosters reflecting the vaccination status of employees;
• Collect and retain proof of vaccination from employees;
• Provide paid time off for employees to receive the vaccine and to recover from its side effects;
• Grant medical, disability and religious exemptions to mandatory vaccination policies as required by law;
• Require employees to be fully vaccinated or to submit proof of a negative COVID-19 test at least every seven calendar days and to wear face coverings in the workplace; and
• Remove from the workplace employees who receive a positive COVID-19 test.

Under the rule, in a provision designed to encourage vaccination, employers may require employees to pay for their own testing.

These relatively simple bullet points stand in contrast to the complexity awaiting many employers in determining their obligations to comply and developing programs for compliance in the next 60 days. There are also likely to be legal challenges to the interim final rule before its implementation that may affect its scope and application. 

CMS COVID-19 Vaccination Rule for Health Care Providers

CMS also issued its interim final rule requiring vaccination for all staff members of Medicare- and Medicaid-certified facilities. Such health care facilities need follow only the CMS rule, which imposes more rigorous requirements than the OSHA rule. In particular, employers subject to the CMS rule cannot elect to require testing in lieu of vaccination.

Under the CMS rule, covered employers must:

• Establish a policy requiring all staff (including employees, licensed practitioners, students, trainees, volunteers and contractors), regardless of clinical responsibility or patient contact, to be fully vaccinated for COVID-19;
• Omit from the vaccination requirement only individuals who are full-time teleworkers;
• Allow exemptions only for individuals who cannot be vaccinated due to medical contraindications or sincerely held religious beliefs, as required by law;
• Require all staff to have received the first dose of the Pfizer or Moderna vaccination or the sole Johnson & Johnson vaccination by Dec. 5, 2021;
• Require all staff to be fully vaccinated by Jan. 4, 2022;
• Provide paid time off for employees to receive the vaccine and to recover from any side effects; and
• Continue complying with data-reporting requirements of previous CMS emergency regulations.

Please contact a member of Robinson Bradshaw’s Employment and Labor Practice Group with questions or for assistance in creating or implementing a vaccination policy.