Editor’s Note: On Jan. 13, the U.S. Supreme Court blocked the Occupational Safety and Health Administration (OSHA) vaccine mandate. Therefore, companies with federal contract and/or 100 or more employees are not required to comply with the Emergency Temporary Standard (ETS). In addition, it ruled the Centers for Medicare & Medicaid Services (CMS) ETS will go forward. It covers any staff member who works at or services the facilities listed below. The compliance deadlines are Jan. 28 for receiving the first shot of a two-shot vaccination or the single-shot vaccination; and Feb. 28 for receiving the second shot of a two-shot vaccination.
On Nov. 4, the U.S. Department of Labor’s Occupational Health and Safety Administration (OSHA) released an emergency temporary standard (ETS) on vaccines and testing. On Nov. 12, the Fifth Circuit Court of Appeals issued a motion that halts enforcement “until further court order.” On Nov. 16, all cases were consolidated in the Sixth Circuit Court of Appeals. On Nov. 17, OSHA halted implementation and enforcement pending litigation. The OSHA rule has not been withdrawn, and if court cases are unsuccessful, the deadlines listed below likely would be updated. Companies should consider how they will comply with the ETS if the stay is lifted (it was not at press time). The Centers for Medicare & Medicaid Services (CMS) also released a separate ETS covering those who work at or service healthcare facilities, regardless of company size. This rule has not been stayed. The National Pest Management Association (NPMA) staff reviewed the rules and wrote a breakdown of key provisions of both policies.
The following is from the NPMA’s Nov. 5 email to members:
When does the OSHA ETS go into effect? For those choosing the masking option, Dec. 5, 2021. The OSHA ETS goes into effect fully on Jan. 4, 2022.
Whom does the OSHA ETS cover? The rule covers anyone who either holds a federal contract and/or has more than 100 employees. The 100-employee size is per company, not per location.
What are the vaccine requirements for my company? Covered employers must create and enforce a written COVID-19 policy that either requires:
- All employees to be fully vaccinated effective Jan. 4, 2022, or
- All unvaccinated employees to submit to specific types of weekly testing and wear a mask beginning Dec. 5, 2021.
What does “fully vaccinated” mean? Employees must have received either two doses of Moderna/Pfizer or one dose of Johnson & Johnson at least two weeks prior to the effective date of Jan. 4. Should an individual receive one shot of one vaccine and a second shot of a different vaccine, then the second shot must have been administered 21 days prior to Jan. 4.
What does my company need to report to OSHA? A work-related COVID fatality must be reported to OSHA within eight hours of the employer learning of it. A work-related COVID hospitalization must be reported to OSHA within 24 hours of the employer learning of it.
What if I live in a state that has prohibited a vaccine mandate and/or mask wearing? OSHA standards preempt state rules, except in states that have their own OSHA-approved workplace agencies. Those state agencies (which OSHA monitors) are required to enact a rule that is at least as effective as the OSHA rule, effectively making OSHA rules the law of the land.
Employers must inform employees of these policy changes, and distribute “Key Things to Know About COVID-19 Vaccines,” available online at CDC.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html.
For more details, visit the U.S. Department of Labor’s Frequently Asked Questions page at osha.gov/coronavirus/ets2/faqs.
When does the CMS Healthcare ETS go into effect? The CMS ETS goes into effect Jan. 4, 2022. Unvaccinated individuals must have received their first shot by Dec. 5.
Who is covered? This affects you if you service any facility that take payments from Medicare or Medicaid, including hospitals, nursing homes, long-term care facilities, dialysis centers, ambulatory surgical centers, home health agencies, rehabilitation facilities, specialized medical providers, in-home care providers, hospices, and mental health providers. This does not directly apply to other healthcare entities, such as physician offices, that are not regulated by CMS.
For more details, see CMS’ Vaccination Interim Final Rule at cms.gov/files/document/cms-omnibus-staff-vax-requirements-2021.pdf.