If you’re leaning toward pausing your vaccination requirement process, be ready to crank it back up on a dime, legal experts stress.
After the Biden administration issued two COVID-19 vaccination regulations on Nov. 5 — one from the Centers for Medicare & Medicaid Services and one from the Occupational Safety and Health Administration — states and state coalitions mounted legal challenges to them in federal courts across the country.
OSHA ETS: First, “on November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard,” OSHA says in a prominent notice on its website. That regulation would require employers with 100 or more employees to require vaccination or COVID-19 testing. “The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order.’ The U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over ETS challenges and [the Department of Labor] has filed a motion to lift the stay,” according to OSHA.
CMS Rule: Second, on Nov. 29, the U.S. District Court for the Eastern District of Missouri issued a preliminary injunction covering 10 states, blocking the CMS interim final rule with comment period (IFC) that would require employee COVID vaccination for 21 types of Medicare health care providers — including HHAs and hospices. Then on Nov. 30, the U.S. District Court for the Western District of Louisiana granted a nationwide preliminary injunction on the matter.
The feds and the states will be duking it out for some weeks to come, experts predict. That means providers won’t receive a final answer on whether the Medicare rule or the OSHA ETS are in effect until well after their Phase 1 Dec. 6 due date, and maybe even after the Phase 2 Jan. 4, 2022, due date.
Heed advice from the experts to determine how you want to navigate this legally tricky area. First, check your area-specific laws on this front and make sure you are in compliance with your state or local vaccination requirements. If you don’t have employee vaccination requirements on the state or local level, then you have two options for how to proceed:
Option 1. Proceed With a Vaccination Mandate
In the absence of CMS rules, you have the opportunity to craft your vaccination requirement as you see fit, provided it follows laws for exemptions such as the Americans with Disabilities Act, experts allow. Also make sure any vaccination requirements you implement comply with collective bargaining agreements you have in place with employees.
Option 2: Pause Any Vaccination Requirements
If you want to go this route and you have formally adopted a policy, best practice would be to formally suspend it and let staff know what it means — that you will not remove those staff from the schedule who are not vaccinated by Dec. 6 or Jan. 4, 2022.
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