OSHA ETS & CMS Rule on Vaccines and Testing – Legal Injunction Update

​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.

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What does this mean for OSHA ETS?
First, OSHA’s website now indicates that in light of the Fifth Circuit’s injunction, “OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Second, the Sixth Circuit will now review the Fifth Circuit’s decision and decide whether to leave the injunction in place, modify it, or to dissolve/vacate it. No timeline has yet been established for when the Sixth Circuit will rule on this issue.

What does this mean for CMS Rule?
As of now, the CMS Rule has not yet been enjoined like the OSHA ETS rule was. Therefore, if your business is covered by the CMS Rule requirements, you should continue to plan to comply by the deadline. For example, the CMS Rule applies to home health agencies that provide services such as skilled nursing care, physical, occupational and speech therapy, medical social work and home health aide services. Remember, however, the CMS FAQs related to coverage. One of the FAQs that many of our clients have found helpful is the FAQ answering whether the CMS requirement applies to Medicaid home care services such as Home and Community-based Services (HCBS), since those providers receive Medicaid funding but are not regulated as certified facilities. CMS answered that question in the negative. It said the CMS Rule only applies to those Medicare and Medicaid-certified providers and supplier types that are regulated under CMS health and safety regulations.