While the issue of whether private employers can legally enforce vaccine mandates among their workforce continues to be challenged across the country, a split panel in the Fifth Circuit is the first appellate court to signal certain private employer mandates could be vulnerable. On February 17, the Fifth Circuit issued an unpublished 2-to-1 panel decision in Sambrano v. United Airlines. The opinion, which is of limited precedential value, reverses the district court’s denial of a preliminary injunction against the airline’s mandatory vaccine program.
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On January 26, OSHA withdrew its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which required large employers to ensure that their employees either get vaccinated against COVID-19 or undergo regular COVID-19 testing in lieu of vaccination. This announcement follows on the heels of a January 13 decision from the U.S. Supreme Court that stayed implementation of the ETS pending a lower court decision on the merits of a legal challenge to the ETS. Despite withdrawing the ETS as an enforceable standard, and effectively ending the current round of ETS litigation, OSHA emphasized that the ETS will continue to serve as its proposal for a permanent standard. With the U.S. Supreme Court’s consideration of challenges to the OSHA ETS and the CMS Vaccine Mandate making the headlines, less attention has been paid to the federal contractor vaccine mandate even though it remains a separate topic of continuing interest for many employers. Presidential Executive Order 14042 (September 9, 2021) directed the federal agencies to contractually require certain federal contractors and subcontractors to implement COVID-19 workplace safety measures, including a vaccine mandate with no “testing” option. According to an update from Littler, on January 21, the Georgia Federal District Court issued an order stating that its injunction applies only to enforcement of the federal contractor vaccine mandate and that the requirements relating to masking, social distancing, and designation of an individual to coordinate COVID-19 safety protocols at covered workplaces have not been enjoined. Last week, Gov. Phil Murphy announced a new universal vaccination mandate for workers in healthcare settings like hospitals and nursing homes and high-risk congregate locations like prisons that will go into effect over the next two months. The executive order will require all such workers to receive a booster shot in addition to being fully vaccinated. Last week, Moving Health Home (MHH) released a new report exploring the transformation that home-based care has undergone during the pandemic. Insights and findings from this report are based in part on in-depth interviews conducted by Avalere Health with leaders from organizations, including Landmark Health, DispatchHealth, Contessa Health, Ascension, and Advocate Aurora Health, which have either based or adapted their clinical and business models to serve patients in their homes.
The U.S. Department of Health and Human Services has renewed the COVID-19 public health emergency for an additional 90 days, extending key flexibilities for providers still grappling with the pandemic. The public health emergency was first ordered back in January 2020 and was set to expire after Jan. 16. 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. 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.
California Governor Mandates COVID Booster for All Healthcare Workers, Including Home Care12/29/2021 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. |
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