The information provided in this FAQ is not meant to constitute legal advice. Facts and circumstances, as well as the case law in a given jurisdiction, must be considered. It is advisable to consult legal counsel regarding advice on a particular situation.

Guest Author: Rachel V. Rose, JD, MBA is a Principal with Rachel V. Rose – Attorney at Law, P.L.L.C. (Houston, TX) and member of our editorial council.

The vaccination landscape, both within the healthcare sector and at other businesses, is in flux. It is recommended to check relevant government websites and stay abreast of current case law.

HHS Vaccine Mandate

On January 21, 2021, the President issued an Executive Order declaring that “ensuring the health and safety of workers is a national priority and a moral imperative.” In June 2021, OSHA issued an emergency temporary standard (ETS), 29 CFR 1910, Subpart U. On September 9, 2021, President Biden announced a new vaccine mandate for healthcare workers employed at most Medicare- and Medicaid-certified facilities; continued participation in Medicare and Medicaid programs is conditioned on compliance with this vaccine mandate.

Facilities covered by the November 5, 2021 regulation (i.e, those receiving Medicare and Medicaid funds) must establish a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by December 5, 2021. All eligible staff must have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by January 4, 2022. The regulation also provides for exemptions based on recognized medical conditions or religious beliefs, observances, or practices. Facilities must develop a similar process or plan for permitting exemptions in alignment with federal law. https://www.cms.gov/files/document/cms-omnibus-staff-vax-requirements-2021.pdf (Nov. 5, 2021).

Update: Several U.S. District Courts have issued new rulings halting the HHS vaccine mandate for healthcare workers and government contractors. (https://thehill.com/regulation/court-battles/583694-new-court-rulings-halt-biden-vaccine-mandate-for-federal-contractors).

OSHA Vaccine Mandate

On November 5, 2021, an emergency temporary standard was issued by the Occupational Safety and Health Administration (OSHA). It covers companies with 100 or more employees and applies to an estimated 84 million workers, regardless of whether or not Medicare or Medicaid funds are received. Companies must ensure either that their workers are fully vaccinated against COVID-19 by Jan. 4 or that they test negative for the coronavirus at least once a week. https://www.osha.gov/coronavirus/ets2/faqs; https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf.

Update: The Occupational Safety and Health Administration (OSHA) suspended enforcement of the Biden administration’s COVID-19 vaccine mandate for large private businesses after the Fifth Circuit Court of Appeals upheld a stay on November 12, 2021. Case No. 21-60845. (https://storage.courtlistener.com/pdf/2021/11/12/bst_holdings_l.l.c._v._osha.pdf).