In September of last year, President Biden announced his “Path Out of the Pandemic” plan. The plan offered a six-pronged approach to combat COVID-19, which included advancing COVID-19 mitigation and response efforts through vaccination and masking, keeping schools safely open, and bolstering our economic recovery. A portion of that plan involved the Department of Labor’s Occupational Safety and Health Administration (OSHA) issuing a now withdrawn Emergency Temporary Standard (ETS). OSHA’s ETS would have required all employers with 100 or more employees to ensure that their workforce either get vaccinated against COVID-19 or produce a negative test result on a weekly basis as well as be required to wear a mask at all times.
However, even though OSHA’s ETS has been withdrawn, it was only part of a group of many mandates that have been grouped together under the singular term “vaccine mandate”, and many of the others are still in effect. Read on to see the remaining vaccine mandates and how they affect employers.
Other Existing Mandates
OSHA’s broad ETS may have been withdrawn, but other mandates still exist that affect employers.
Federal Worker and Contractor Mandates
Executive Order 14042 requires all contractors that do business with the federal government as well as all federal executive branch workers to be vaccinated. This Order includes the Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institute of Health. These organizations, as well as any contractors that do business with them, were required to complete the implementation of the order by January 18, 2022,
allowing for exceptions only as required by law.
Mandates in Healthcare
Back in December, “OSHA” announced on its website that it was “withdrawing the non-recordkeeping portion” of its healthcare emergency temporary standard (“Healthcare ETS”).
However, the Final Rule issued by the federal Centers for Medicare & Medicaid Services (CMS) is still in effect. This mandate requires vaccination for health care workers employed by any facility that receives federal Medicare or Medicaid funding. It covers virtually all healthcare workers in the country affecting 10.4 million workers at 76,000 healthcare facilities nationwide as well as home healthcare providers. For employers that are covered by the CMS health care directive, workers must receive their first COVID-19 vaccine dose by Jan. 27 and be fully vaccinated by Feb. 28. Additionally, employers will be required to track the vaccination statuses of employees as well as develop vaccination policies that include medical and religious exemptions and accommodations. Covered facilities can review the CMS guidance and survey compliance procedures broken out by type of facility here.
State Level Mandates
So far, there are 25 states that have state-level mandates that cover all healthcare workers, not just those in Medicare/Medicaid facilities.
- California, Connecticut, Massachusetts, New Jersey, New Mexico, and New York all have a mandate covering boosters or “up-to-date vaccine status” for all healthcare workers.
- Colorado, Main, New York, Oregon, Rhode Island, and Washington have a “vaccinate or terminate” mandate for healthcare workers.
- California, District of Columbia, Delaware, Kentucky, Massachusetts, Mississippi, Nevada, New Jersey, New Mexico, North Carolina, Pennsylvania, Vermont, and Wisconsin all have a “vaccination or testing” mandate in place for healthcare workers.
- Connecticut, Illinois, and Maryland have a “vaccination or testing and masking” mandate in place for their healthcare workers.
Withdrawn, But Not Forgotten
It’s important to note that the guidelines set out by OSHA’s ETS could still return in some form. The agency has made it clear that although it was withdrawing the ETS as an enforceable emergency temporary standard, the guidelines will continue to serve as a proposed permanent rule during the rule-making process outlined under the Occupational Safety and Health Act (OSH Act). Furthermore, during the announcement of the ETS withdrawal, OSHA stated that it “is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”
As employers continue to move through murky and uncharted waters they should remember that ETS or not, attention should still be paid to the COVID-19 guidance that OSHA has already put out, much of which incorporates CDC guidance. It’s also important for employers to stay abreast of individual State Plans as 28 States and U.S. territories are allowed by OSHA to develop their own workplace health and safety plans, as long as those plans are “at least as effective” as the federal program.
Additionally, the agency will continue to inspect worksites for COVID-19 safety under the agency’s current standards, including the COVID-19 National Emphasis Program an initiative that targets high-risk industries. They will also continue to monitor the housekeeping and respiratory standards of employers under the Occupational Safety and Health Act’s general duty clause that states that all employers must provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
Even with the ETS withdrawn, President Biden is still calling on employers to “voluntarily implement the requirements outlined in the standard” and withdrawal notwithstanding, OSHA continues “to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.” As your organization continues to create and implement its own COVID-19 policies the safety and health of your valuable workforce should be put at the forefront of planning while keeping in line with your company values and standards as well as any vaccination rules at your state, local, and industry levels.