Earlier today, the U.S. Supreme Court blocked OSHA from enforcing a vaccine mandate for large private employers. This ruling essentially stays the OSHA ETS until further legal appeals can be resolved at the Sixth Circuit and perhaps again at the U.S. Supreme Court. This means that the January 10 and February 9 deadlines have been stayed pending further legal proceedings.
Last week, the U.S. Supreme Court heard arguments on challenges to both the CMS vaccine mandate and the OSHA vaccine-or-test Emergency Temporary Standard (ETS) for large employers. Most court observers agreed that a majority of the justices were skeptical of OSHA’s ability to impose its mandate, but seemed more receptive to the CMS rule. The Court’s ruling is expected any day.
Biden Administration Requires Insurance Companies, Group Health Plans to Cover At-Home COVID Test Costs Beginning Saturday
As part of an ongoing effort to expand Americans’ access to free testing, the Biden Administration is requiring insurance companies and group health plans to cover the cost of over-the-counter, at-home COVID-19 tests, so people with private health coverage can get them for free starting this Saturday, January 15. The new coverage requirement means that most consumers with private health coverage can go online or to a pharmacy or store, buy a test, and either get it paid for up front by their health plan, or get reimbursed for the cost by submitting a claim to their plan.
Governor Newsom announced last week that by February 1, 2022, health care workers and all employees in high-risk congregate settings, including those providing in-home care will be required to get their COVID-19 booster shot. In the interim, all health care staff that have not received their booster must test for COVID-19 twice weekly until they are up to date on their vaccines.
On Monday, as the state experienced an Omicron variant-driven surge in coronavirus cases to a positivity rate of almost 11%, Connecticut Gov. Ned Lamont announced plans to distribute three million COVID-19 rapid tests and six million N95 masks in an effort to help curb the spread of COVID-19 during the heavy travel and holiday season.
Late last week, the 6th U.S. Circuit Court of Appeals lifted the stay on the OSHA rule requiring covered employers to ensure workers have received the COVID vaccine or undergo weekly COVID-19 testing. Employers with at least 100 employees will need to determine the COVID-19 vaccination status of their employees and develop a written vaccine-or-testing policy under the OSHA rule.
To give employers time to comply, OSHA will not enforce any requirements under its Emergency Temporary Standard (ETS) until Jan. 10. Additionally, the agency "will not issue citations for noncompliance 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," according to an OSHA update.
The U.S. Supreme Court could decide to block this directive again.
Also last week, the 5th U.S. Circuit Court of Appeals reversed a nationwide injunction put into place on Nov. 30, ruling that the injunction halting enforcement of the CMS vaccine mandate nationwide should apply only to the 14 states involved in that lawsuit. Eleven other states had previously challenged the CMS Rule in separate actions.
The end result is that the CMS vaccine mandate remains in place in the 14 states who were parties to the original litigation: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio. The CMS vaccine mandate is also enjoined for the time being in the 10 states litigating in the District of Missouri: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.
HCAOA will provide up-to-the-minute updates as they become available. Click here for an updated memo from Polsinelli with the latest information about the mandates.
HCAOA Associate Member Littler has compiled a one-stop chart (current as of 12/13/21) that provides basic information on vaccination mandates issued at the federal and statewide levels. It covers directives that affect public or private entities as employers.
Recently, two separate federal district courts - the Western District of Louisiana and Eastern District of Missouri - issued injunctions blocking enforcement of the CMS rule mandating healthcare worker vaccinations. In combination, these rulings result in a nationwide preliminary injunction prohibiting CMS from enforcing the vaccine mandate. And last week, a federal judge in Georgia issued a nationwide injunction that prevents the Biden Administration from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts.
Last week, the Connecticut Department of Public Health began issuing civil penalties to long-term care facilities subject to Executive Order 13F, which mandates COVID-19 vaccinations for individuals who work in the facilities, the agency announced. Long-term care facilities subject to the EO include nursing homes, assisted living services agencies, managed residential communities, residential care homes, chronic disease hospitals, and intermediate care facilities for individuals with intellectual disabilities. “These vaccine mandates are in place to protect not only the patients and residents in long-term care but to ensure the health and safety of staff and their families and co-workers,” said DPH Commissioner Manisha Juthani, MD.
HCAOA Associate Member Littler has been monitoring the latest OSHA ETS and CMS Rule developments related to the “vaccine or test” mandates and challenges around the country. There were at least 34 challenges to the OSHA ETS filed in 12 different courts of appeal around the country. On November 12, the U.S. Court of Appeals for the Fifth Circuit issued the first order enjoining enforcement and implementation of the OSHA’s ETS. Shortly thereafter, on November 16, all of the challenges filed around the country were consolidated before the U.S. Court of Appeals for the Sixth Circuit. In addition, there are at least two lawsuits that have been filed challenging the CMS mandate.
By Angelo Spinola, William C. Vail, Christopher Razo – Polsinelli
What a week in the legal world! The Biden Administration issued a Vaccination and Testing Emergency Temporary Standard (ETS) on Thursday, November 4th, which the Fifth Circuit halted on Saturday, November 13. The Administration also issued a rule for certain healthcare providers accepting Medicare and Medicaid funding, and it pushed back the compliance date for federal contractors to comply with a third vaccination mandate. So where does that leave you?