Tag: Vaccination

  • Federal Court Reinstates OSHA Vaccination and Testing ETS – CUPA-HR

    Federal Court Reinstates OSHA Vaccination and Testing ETS – CUPA-HR

    by CUPA-HR | December 20, 2021

    On December 17, the 6th U.S. Court of Appeals vacated the 5th Circuit Court’s emergency motion to stay the Occupational Safety and Health Administration (OSHA)’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), paving the way for OSHA to continue implementing and enforcing the vaccination and testing requirements for covered employers with 100 or more employees.

    The ETS requires covered employers and employees to be fully vaccinated or in compliance with testing requirements by January 4, 2022. The stay, which was granted in November, temporarily halted OSHA from implementing and enforcing the vaccination and testing requirements. While the stay was in place, it was unclear whether or not OSHA would be able to fully implement the ETS by January 4 or any time after.

    With the recent decision from the 6th Circuit Court, OSHA now plans to implement the ETS as quickly as possible. To account for the timing uncertainty created by the stay, however, OSHA also has announced that it will not issue non-compliance citations for any of the requirements of the ETS before January 10, 2022, and it will not issue non-compliance citations specifically for the ETS’s testing requirements until February 9, 2022, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” OSHA has also vowed to provide compliance assistance to help employers navigate these new requirements and timelines.

    Shortly after the 6th Circuit’s order, a number of groups challenging the ETS filed emergency applications with the Supreme Court seeking to reinstate the stay. Meanwhile, the federal contractor vaccine mandate and the Centers for Medicare and Medicaid Services’ (CMS) healthcare worker vaccine mandate remain stayed as litigation continues in several federal courts.

    CUPA-HR will keep members apprised of any future legal challenges and decisions made on the OSHA ETS, federal contractor vaccine mandate, and healthcare worker vaccine mandate.



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  • OSHA Emergency Temporary Standard and CMS Interim Final Rule on Vaccination Requirements Released – CUPA-HR

    OSHA Emergency Temporary Standard and CMS Interim Final Rule on Vaccination Requirements Released – CUPA-HR

    by CUPA-HR | November 4, 2021

    On November 4, the Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Department of Health and Human Services’ Centers for Medicare & Medicaid Services (CMS) issued their highly anticipated Emergency Temporary Standard (ETS) and interim final rule (IFR) setting vaccination requirements for employers with 100 or more employees and healthcare workers, respectively. Under the new policies, covered employers with 100 or more employees, healthcare workers at facilities participating in Medicare or Medicaid, AND federal contractors requiring vaccinations under Executive Order 14042 (EO) will be required to be fully vaccinated — either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson — by January 4, 2022.

    A Fact Sheet announcing the new vaccinations rules provides the following information on the OSHA ETS, CMS IFR and federal contractor vaccination requirements:

    OSHA Emergency Temporary Standard

    In lieu of full vaccination, the OSHA ETS for employers with 100 or more employees (covered employers) also offers the option for unvaccinated employees to produce a verified negative COVID-19 test to employers on at least a weekly basis. OSHA does clarify, however, that the ETS does NOT require employers to provide or pay for tests, but notes that employers may be required to pay for testing due to other laws or collective bargaining agreements.

    The ETS also establishes policies that require covered employers to provide paid time off (PTO) for their employees to get vaccinated and, if needed, sick leave to recover from side effects that keep them from working. Additionally, all covered employers will be required to ensure that unvaccinated employees wear a face mask in the workplace. While the testing and vaccination requirements will begin after January 4, the ETS states that covered employers must be in compliance with the PTO for vaccination and masking for unvaccinated workers requirements by December 5, 2021.

    Importantly, OSHA clarifies in the ETS that the rule will not apply to workplaces already covered by the CMS IFR, as well as the federal contractor vaccination requirement set forth by President Biden’s EO and the Safer Federal Workforce Task Force’s vaccination guidance.

    Healthcare Interim Final Rule

    According to CMS, the IFR requiring full vaccination of healthcare employees applies to employees regardless of whether their positions are clinical or non-clinical and includes employees, students, trainees and volunteers who work at a covered facility that receives federal funding from Medicare or Medicaid. It also includes individuals who provide treatment or other services for the facility under contract or other arrangements. Among the facility types covered by the IFR are hospitals, ambulatory surgery centers, dialysis facilities, home health agencies and long-term care facilities.

    Federal Contractor Vaccination Executive Order

    In an effort to streamline implementation of the vaccination requirements, the Biden administration is also announcing that the deadline for previously issued federal contractor vaccination requirements will be extended to January 4, 2022, setting one deadline across the three different vaccination policies. The vaccine requirement for federal contractor compliance was previously set for December 8, 2021.

    Additionally, as mentioned above, federal contractor employers who may otherwise fall under the OSHA ETS covered employer definition will not be required to follow the rules established under the ETS and must continue compliance with the vaccination guidance and requirements set forth by the EO and Safer Federal Workforce Task Force for federal contractors.

    State and Local Preemption

    Early reports of the rules also state that both the OSHA ETS and CMS IFR make it clear that their requirements “preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks or testing.” More information is likely to follow.

    Additional information is likely to arise as we learn more from the actual text of the ETS and IFR. CUPA-HR will keep members apprised of all new information.



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  • White House Reviews OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard – CUPA-HR

    White House Reviews OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard – CUPA-HR

    by CUPA-HR | October 25, 2021

    On October 12, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) sent their COVID-19 Vaccination and Testing Emergency Temporary Standard Rulemaking (ETS) to the Office of Information and Regulatory Affairs (OIRA). OIRA is the White House office responsible for reviewing regulations and proposed regulations before they are publicly released.

    The ETS — which has not yet been made public — is expected to require private employers with 100 or more employees to “ensure their workforces are fully vaccinated or show a negative COVID-19 test twice a week” and provide paid time off for obtaining or recovering from the vaccination (additional details regarding what is known about the ETS can be found in this CUPA-HR blog).

    What is an ​Emergency Temporary Standard?

    While most federal agencies are required to provide public notice and seek comment prior to enacting new regulations, OSHA may bypass normal rulemaking and issue an ETS if doing so is necessary to protect workers from a “grave danger.” This allows OSHA to issue the ETS without any feedback from impacted stakeholders and require employers to immediately comply with the ETS upon its publication in the Federal Register.

    ​Office of Information and Regulatory Affairs Review

    OIRA is part of the executive office of the president and is required to review significant regulatory actions — those likely to have an annual effect on the economy of $100 million or more — before they are published in the Federal Register or otherwise issued to the public. As the ETS is determined to be “Economically Significant,” an OIRA review is triggered to ensure that it reflects the goals set forth in President Biden’s COVID-19 Plan and to ensure OSHA has carefully considered the benefits and costs of the ETS before it is issued.

    While draft documents under review are not available for public release, it is OIRA’s policy to meet with interested stakeholders to discuss issues on a rule under review. As of October 22, OIRA has convened 68 meetings with outside stakeholders on the ETS and has scheduled meetings through October 25. While CUPA-HR is aware many more additional pending meeting requests (including our own), OIRA has yet to schedule these, and may not. While OIRA review is limited to 90 days, there is no minimum period of review, and given the urgency associated with the ETS it could be issued as soon as this week.

    CUPA-HR will continue to monitor OIRA’s review process and be sure to inform our membership as soon as OIRA review concludes and OSHA issues the ETS.



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