A New Year’s Update on COVID-19 Healthcare ETS and the Vaccination Mandates

Published for Coates' Canons on January 04, 2022.

It seems like a day doesn’t go by where there isn’t a new development in the status of federal COVID-19 regulations and the three federal vaccine mandates. Read on to find out about the expiration of the Occupational Safety and Health Administration’s (OSHA’s) temporary Healthcare Emergency Temporary Standard (ETS), and about how the U.S. Supreme Court will hear arguments about both the OSHA vaccination-or-testing ETS (applicable to employers with 100 or more employees) and the Centers for Medicare and Medicaid Services’ (CMS) vaccination mandate. In case you missed my December update, there’s also a reminder about the current enforcement status of the CMS vaccination mandate and the federal contractor vaccination mandate. 

OSHA’s Healthcare ETS (Non-Vaccine) Expires – Sort Of

Certain portions of federal OSHA’s COVID-19 Healthcare Emergency Temporary Standard (ETS) expired on December 21, 2021. The Healthcare ETS was developed to protect employees at the highest risk of contracting COVID-19 in the workplace, namely, those working in health care settings where suspected or confirmed coronavirus patients are evaluated or treated. In local government, that is likely to include employees of local health departments who are involved in testing for COVID-19 or in treating patients in medical clinics, some home health care and social workers and EMS employees. The Healthcare ETS required employers to adopt extensive mitigating measures, but it did not mandate vaccination of covered employees. For a full discussion of the Healthcare ETS, see here.

Federal law requires that in most cases, an emergency temporary standard either be replaced by a permanent regulation or expire after six months. While OSHA intends to issue a permanent regulation protecting healthcare employees from exposure to COVID-19, that regulation is not yet ready. As a result, OSHA formally withdrew the non-recordkeeping portions of the healthcare ETS. But OSHA’s COVID-19 log and reporting provisions remain in effect as they were adopted under a different section of the law. See OSHA’s press release on the expiration of the Healthcare ETS here.

Does this mean local government employers covered by the Healthcare ETS may dispense with its requirements? Perhaps, but doing so entails a significant risk.

OSHA expressly says in its press release that it considers the terms of the Healthcare ETS relevant to OSHA’s general duty clause and general standards and that it intends to enforce both vigorously as it works toward a permanent regulation. OSHA says that it

“will accept compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards. Continued adherence to the terms of the healthcare ETS is the simplest way for employers in healthcare settings to protect their employees’ health and ensure compliance with their OSH Act obligations.” (emphasis added).

North Carolina employers, including local government employers, are subject to OSHA’s regulations through their adoption by the North Carolina Division of Occupational Safety and Health (NC OSH) (for more on the relationship between OSHA and NC OSH, see the second paragraph here). The Healthcare ETS was adopted in full by NC OSH in July 2021. But as it is only the regulation that NC OSH adopted, it is not clear whether the section of the federal Occupational Safety and Health Act that limits the duration of an ETS to six month applies. NC OSH has not yet made a statement about the continued effectiveness or the expiration of the Healthcare ETS.

Given that OSHA intends to enact a permanent regulation protecting healthcare employees from exposure to COVID-19 as soon as possible and that NC OSH will likely adopt it, the least risky course of action for a local government employer would be to continue to observe the terms of the Healthcare ETS.

U.S. Supreme Court to Hear Oral Arguments on Validity of OSHA Vaccination-or-Testing Mandate and CMS Vaccination Mandate on January 7, 2022

There are three federal vaccine mandates: the OSHA vaccination-or-testing mandate applicable to employers with 100 or more employees, the CMS mandatory vaccination requirement applicable to certain healthcare providers, and the mandatory vaccination requirement applicable to federal contractors. On January 7, 2022, the U.S. Supreme Court will hear oral arguments in cases involving two of the three vaccine mandates: the OSHA’s vaccination-or-testing mandate and the CMS mandate.

As discussed more fully in a previous blog post, in mid-December a federal court of appeals lifted the block against enforcement of OSHA’s vaccination-or-testing mandate. That mandate is effective on January 4, 2022, with OSHA beginning to issue citations for noncompliance shortly thereafter. However, that deadline is irrelevant for North Carolina employers as NC OSH has not yet indicated when it will make the vaccination-or-testing requirement effective in North Carolina. On the substance of the vaccination-or-testing mandate, see here.

The CMS mandate is currently in effect in North Carolina, although it is blocked in several other states. Given the confusion that has resulted from the separate lawsuits challenging the different mandates, CMS has modified the timeline for implementation. Employees receiving either the two-dose Pfizer or two-dose Moderna vaccine must now have received the first dose by January 27, 2022 and the second dose by February 28, 2022 (the earlier deadlines were December 6, 2021 and January 4, 2022). For CMS FAQs on the deadline extensions, see here. On the substances of the CMS mandate, see here.

The Federal Contractor Mandate

President Biden’s Executive Order directing federal contractors to require vaccination of certain employees remains on hold nationwide. In early December, a federal district court in Georgia ordered the federal government not to enforcement its mandate that employees of federal contractors must be fully vaccinated by January 4, 2022. The Administration appealed. On December 17, 2021, the federal Eleventh Circuit Court of Appeals upheld the lower court’s ruling and continued to block enforcement of the federal contractor mandate while its validity is litigated. For more on the substance of the federal contractor mandate and on whether it applies to local governments, see here.

Topics - Local and State Government