News and Insights
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OSHA Federal Vaccine Mandate: The Latest Update for Employers
On Friday, December 17, 2021, a federal circuit court of appeals lifted a stay banning implementation and enforcement of the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard on COVID-19 vaccination and testing for employees of employers with at least 100 employees (“OSHA Rule”).[1] The OSHA Rule, also known as the vaccine-or-testing mandate, covers approximately 80 million workers in the United States.
What does the OSHA Rule require?
Generally, for employers with at least 100 employees (“Large Employers”), the OSHA Rule requires face covering requirements, a written policy, collection of proof of vaccination, creation of a vaccination status records, removal of COVID-19 positive or untested employees from the workplace, maintenance of employee medical records, and certain employee communications about the employer’s policies and vaccine information from the Centers for Disease Control and Prevention.
More specifically, the OSHA Rule requires all employees of Large Employers to be fully vaccinated or submit weekly COVID-19 testing and wear a face mask while in the workplace. Additionally, the employer must:
- Establish, implement, and enforce a written policy that either (1) requires mandatory vaccinations, or (2) allows employees to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering.
- Determine the vaccination status of each employee. In instances where an employee is unable to produce acceptable proof of vaccination, a signed and dated statement by the employee is acceptable proof of vaccination.
- Keep records of employee vaccination status in a file separate from the employee’s personnel file.
- Provide a reasonable amount of time to each employee for each (or only) vaccine dose, including (1) up to 4 hours paid time off, including travel time, at the employee’s regular rate, and (2) reasonable paid sick leave to recover from vaccine-related side effects.
- Inform each employee about the OSHA Rule and the employer’s policy.
- Report to OSHA each work-related COVID-19 fatality within 8 hours of the employer learning about the fatality, and inpatient hospitalization within 24 hours of the employer learning about the inpatient patient hospitalization.
- Require employee notification of a positive COVID-19 test or diagnosis.
- Ensure that, for employees who are not fully vaccinated, employees submit to and report COVID-19 testing at least once every 7 days and provide documentation of the most recent COVID-19 test result to the employer no later than the seventh day following the date on which the employee last provided a test result. Unvaccinated employees must wear a face covering indoors and when occupying a work vehicle with another employee.
Are there any exemptions or exceptions to the OSHA Rule?
Yes. The OSHA Rule has specific exemptions for certain types of employers and employees. Specifically, the following are exempt from the OSHA Rule:
- Workplaces covered under the Safer Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors;
- Workplaces covered under the Safer Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors;
- Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS;
- Employees who telework;
- Employees who do not report to a workplace where other people are present; and
- Employees who work exclusively outside.
Exemptions are also available for employees for whom a vaccine is medically contraindicated, who require a delay in vaccination, or for those sincerely held religious beliefs or disabilities.
Which employers are “covered employers” under the OSHA Rule?
The OSHA Rule applies to employers with a total of 100 or more employees at any time the OSHA Rule is in effect. Further, the OSHA Rule applies to healthcare workers in healthcare settings who are not covered by OSHA’s Healthcare Emergency Temporary Standard (“Healthcare ETS”).[2] If the Healthcare ETS no longer applies, workers previously covered by the Healthcare ETS who remain unvaccinated would be subject to the OSHA Rule.
Private Medical Practices:
The OSHA Rule does not apply to private medical practices with fewer than 100 employees. However, private medical practices with fewer than 100 employees may still be subject to the Healthcare ETS.[3]
What should I do if I am a “Covered Employer”?
Businesses with 100 or more employees should determine the COVID-19 vaccination status of their employees and develop a “vaccine-or-test” policy. OSHA announced, however, that it will not issue citations for noncompliance until January 10, 2022. OSHA stated it will exercise its discretion and not issue citations for noncompliance with testing requirements before February 9, 2022, if an employer is exercising reasonable, good faith efforts to comply.
Will there be any more legal challenges to the OSHA Rule that would affect its implementation?
Yes. Multiple parties, including nearly 30 states, have filed emergency motions with the United States Supreme Court to block the OSHA Rule. In its opinion lifting the stay on the OSHA Rule, the Sixth Circuit Court of Appeals noted that OSHA “must be able to respond to dangers as they evolve.”[4]
Emergency appeals, including the request to stay a federal circuit court of appeals’ decision, go directly to the Justice assigned to the particular circuit. Justice Brett Kavanaugh is assigned to the Sixth Circuit. Justice Kavanaugh may decide the motions on his own, or he may elect to distribute to the full court for consideration.
Stay tuned for additional developments and updates on federal vaccine mandates. If you have any questions about COVID-19 employment-related issues, please contact John Conley.
[1] In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000, et al. (6th Cir. Dec. 17, 2021).
[2] See OSHA’S COVID-19 Emergency Temporary Standard: What Employers Need to Know, available here, released September 2021.
[3] Id.
[4] See supra, fn.1.
COVID-19 Federal Vaccination Mandates: Guidance for Employers
What mandates presently apply?
Three federal COVID-19 vaccine mandates have proven to be a frequently-moving target for employers nationwide as to both implementation and compliance. As of the date of this article, all three vaccine mandates are blocked in full or in part.
On September 9, 2021, President Biden announced federal COVID-19 vaccination mandates as part of his COVID-19 Action Plan, Path Out of the Pandemic. The same day, the President issued Executive Orders on COVID-19 vaccination for Federal employees and safety protocols for Federal contractors (the “Federal Contractor Mandate”).[1] On November 5, 2021, the Centers for Medicare and Medicaid Services (“CMS”) and the Occupational Safety and Health Administration (“OSHA”) released interim final rules directed towards employers to require (per CMS) or strongly suggest (per OSHA) employees receive the COVID-19 vaccination. According to the current Administration, approximately two thirds of all private sector employees in the United States would be covered by COVID-19 vaccination rules.[2]
Many states, including Arizona, have challenged the new rules through state legislation and litigation. On November 12, 2021, a federal court in Louisiana stayed enforcement and implementation of the OSHA Rule.[3] All petitions for review of the OSHA Rule, including the Fifth Circuit’s ruling, were consolidated and are now before the U.S. Court of Appeals for the Sixth Circuit.
Shortly thereafter, on November 29, 2021, a federal court in Missouri granted a preliminary injunction blocking the CMS Rule against any and all Medicare- and Medicaid-certified providers and suppliers within Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming pending a trial on the merits. The following day, the court issued a preliminary injunction to cover all 50 states.
On November 30, 2021, a federal court in Kentucky issued an order granting a preliminary injunction to block the enforcement of the Federal Contractor Mandate in all covered contracts in Kentucky, Ohio, and Tennessee. Presently, this means that any covered contractors not affected by the injunction must be fully vaccinated (unless they qualify for a legal exemption) on or before January 18, 2022. Challenges to the Federal Contractor Mandate are presently pending in other jurisdictions, which may result in an extension of the preliminary injunction to additional states.
Stay tuned for additional developments and updates on the federal vaccine mandates and contact Aaron Kacer or Lauren Crawford with any questions. In the meantime, if you have questions about any COVID-19 employment-related issues, please contact John Conley.
[1] See Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, available here, signed September 9, 2021; Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, available here, signed September 9, 2021.
[2] See Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies, available here, released on November 4, 2021.
[3] See BST Holdings, L.L.C., et al. v. Occupational Safety & Health Admin., et al., No. 21-60845, 2021 WL 5166656, at *1 (5th Cir. Nov. 6, 2021), adhered to sub nom. BST Holdings, L.L.C. v. Occupational Safety & Health Admin., United States Dep’t of Labor, 17 F.4th 604 (5th Cir. 2021), available here; see Petition for Review, available here.
OSHA’S COVID-19 Emergency Temporary Standard: What Employers Need to Know
On June 21, 2021, the Occupational Safety and Health Administration’s (“OSHA”) emergency temporary standard (“ETS”) aimed at limiting the spread of COVID-19 in the workplace went into effect.[1] OSHA found, in part, that the COVID-19 pandemic “presents a grave danger to workers in all healthcare settings” and issued the ETS in response.[2]
Who is subject to the ETS?
The ETS applies only to the healthcare sector and includes specific mandatory procedures employers must follow. Specifically, the ETS applies to healthcare “settings where any employee provides healthcare services or healthcare support services.”[3]
OSHA defines “healthcare support services” to include “patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning/reprocessing services.”[4] The ETS does not apply, however, to healthcare support services that are not performed in a healthcare setting. This would include, for example, off-site laundry and off-site medical billing.[5]
Are any healthcare employers exempted from the ETS?
The ETS specifically excludes:
- Distribution of prescriptions by pharmacists in retail settings;
- First aid provided by employees who are not licensed healthcare providers;
- Non-hospital ambulatory care settings where individuals are screened for COVID-19 before entering, and anyone with suspected or confirmed COVID-19 are not permitted to enter the facility;
- Well-defined hospital ambulatory care settings where all employees are fully vaccinated and individuals are screened for COVID-19 before entering, and people with suspected or confirmed COVID-19 are not permitted to enter the facility;
- Home healthcare settings where all employees are fully vaccinated, and non-employees are screened for COVID-19 before entering;
- Healthcare support services not performed in a healthcare setting; and
- Telehealth services where no direct patient care occurs.
For an easy-to-follow graphic, OSHA released a diagram to assist employers in determining whether they are subject to the ETS.
When is the ETS effective?
The ETS was effective on June 21, 2021 when published in the Federal Register. Employers covered by the ETS are required to comply with all requirements within 14 days except for standards relating to physical barriers, training, and ventilation. Covered employers must comply with these requirements within 30 days of the effective date or by July 21, 2021.
What does the ETS require?
The ETS requires healthcare employers to observe various specific requirements, including:
- COVID-19 Plan. Implement a COVID-19 plan, which must be in writing for covered healthcare employers with more than 10 employees.
- Patient screening and management. Monitor points of entry and exit and screen patient and facility visitors.
- Transmission-based precautions. Implement necessary policies and procedures to adhere to standard and transmission-based precautions based on guidelines promulgated by the Centers for Disease Control and Prevention (“CDC”).
- PPE. Provide personal protective equipment, including face masks while workers are indoors or in vehicles together and respirators when employees are exposed to or engaging in aerosol-generating procedures with individuals with known or suspected cases of COVID-19.
- Distancing. Require physical distancing by at least 6 feet while indoors (unless such social distancing is not feasible for a specific activity).
- Cleaning and disinfection. Follow the CDC’s cleaning and disinfection guidelines. Take additional precautions to limit exposure and to disinfect areas when engaging in aerosol-generating procedures with individuals with known or suspected cases of COVID-19.
- Vaccination. Institute paid leave for COVID-19 vaccinations and recovery.
- Anti-retaliation. Institute anti-retaliation protections for employees engaging in actions required by the ETS.
- Record keeping and reporting. Maintain a COVID-19 log (only for those covered employers with more than 10 employees). A sample COVID-19 log and accompanying explanation on requirements may be found here. Report COVID-19 fatalities and hospitalizations to OSHA.
- Screenings and medical management. Follow medical management requirements, including:
- Daily health screenings (self-monitoring is acceptable);
- Employee notification of employers if an employee tests positive for COVID-19, suspects they have COVID-19, or has symptoms;
- Employer notification of employees within 24 hours of known cases;
- Removal of employees from the workplace in accordance with CDC guidance; and
- For covered employers with more than 10 employees, medical removal protection benefits for isolated or quarantined employees.
All ETS procedures and protocols must be implemented at no cost to employees.
What are the “medical removal protection benefits” employers must provide for isolated or quarantined employees?
Employers with 10 to 499 employees are required to provide “medical removal protection benefits” to those employees who must be removed from work and required to isolate or quarantine due to suspected or confirmed COVID-19 infection or exposure to COVID-19, and employers are required to provide the following:
- Permitting employees to work remotely while in self-isolation or quarantine so that they may continue to receive their regular pay and benefits.
- Paying employees who are unable to work remotely their regular pay, up to $1,400 per week, until the employee meets the return-to-work criteria of the ETS with the following caveats:
- Employees will receive their regular pay for the first 2 weeks of removal. Thereafter, they will receive only two-thirds of their regular pay, up to $200 per day.
- An employer’s payment obligation is reduced by the amount of compensation that the employee receives from any other source, including a publicly or employer-funded compensation program (e.g., employer paid sick leave, PTO, state or federal economic security benefits).
- Continuing to provide the benefits the employee is normally entitled (e.g., employer-sponsored health insurance) during the removal period.
- Ensuring that, whenever an employee returns to the workplace after a COVID-19-related workplace removal, the employee does not suffer any adverse action as a result of that removal from the workplace and ensuring that all the employee’s rights and benefits are maintained, including the employee’s right to their former job status, as if the employee had not been removed.
Where can I find additional information on implementation?
OSHA has created fact sheets and detailed responses to the most frequently asked questions regarding the ETS. This information can be found here.
How long does the ETS last?
The ETS is set to expire on December 21, 2021.[6] Covered healthcare employers must comply with the ETS until it expires.
Will there be additional changes to the ETS?
Given the President’s recent Executive Orders on COVID-19 vaccination for Federal employees and safety protocols for Federal contractors, OSHA may publish a revised ETS, and/or Congress or the White House could implement future COVID-related workplace legislative or regulatory requirements on healthcare employers.[7] Stay tuned.
If you have questions about the ETS, compliance, or any COVID-19 employment-related issues, please contact John Conley.
[1] Occupational Exposure to COVID-19; Emergency Temporary Standard, 86 Fed. Reg. 116, 32376 (June 21, 2021) (to be codified at 29 C.F.R. § 1910.502). The full text of OSHA’s ETS is available here.
[2] Id. at 32377.
[3] Id. at 32462.
[4] Id. at 32621.
[5] Id. at 32485.
[6] See 29 U.S.C. §§ 651-78, Occupational Safety and Health Act of 1970 (the “OSH Act”). The OSH Act provides that an ETS is effective until superseded by a permanent standard promulgated by the normal rulemaking provisions of the OSH Act. 29 U.S.C. § 655(c)(2). The OSH Act, however, requires OSHA to promulgate a permanent standard within six months of promulgating the ETS. Id. at (c)(3).
[7] See Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, available here, signed September 9, 2021; Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, available here, signed September 9, 2021.
Scrutiny and Regulation of Non-Compete Agreements
On July 9, 2021, President Biden issued an “Executive Order on Promoting Competition in the American Economy.”[1] The Executive Order takes aim at non-compete agreements, and affirms the Biden Administration’s policy “to enforce the antitrust laws to combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly and monopsony.” It underscores the authority of the Sherman Antitrust Act (15 U.S.C. §§ 1 et seq.), the Clayton Antitrust Act (15 U.S.C. §§ 12 et seq.) and other laws that challenge transactions that lead to excessive market concentration.[2]
Among other things, the Executive Order asks the Federal Trade Commission (“FTC”) to use its regulatory authority prescribed by Federal Trade Commission Act to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” See Executive Order, Section 5(g).[3]
A non-compete is a type of employment contract or restrictive covenant that limits an individual’s ability to work in a particular industry. Non-competes may be stand-alone documents or incorporated into the individual’s employment contract. They typically limit the geographical locations that an individual can work in for a certain period after they leave a job. Critics of non-competes note that, although intended to be a “shield” to protect employers, over the years, they are more often used as a “sword” by employers to control their workers with excessive and unreasonable terms.[4]
Because the Executive Order is not particularly specific, the FTC has the discretion to tackle the problem of unfair non-compete agreements as it sees fit. The Executive Order does not suggest a complete ban on non-competes, so long as such agreements reasonably protect businesses. However, the Executive Order demonstrates the Biden Administration’s determination to protect workers from abusive restrictive covenants.
The business industry is likely to challenge any FTC regulations that follow the Executive Order. It is unclear whether such regulations will survive constitutional scrutiny in federal litigation. However, there appears to be some public and Congressional support for restricting the use of non-competes. For example, the bipartisan Workforce Mobility Act of 2021 (“WMA”) has been introduced in the House of Representative and the Senate.[5] If enacted, it would limit the use of non-competes to sales or dissolutions of business, authorize the U.S. Department of Labor to educate the general public about the use of non-competes, and give workers a private right of action to sue for violations of the WMA.
In Arizona, reasonable non-compete agreements may be enforceable. That includes physician non-competition agreements. In determining reasonableness, Arizona courts look at the duration, geographic scope, and type of activity prohibited by the agreement. Arizona law concerning non-competes is complex. Employers should ensure non-compete agreements are carefully drafted with reasonable terms specifically addressing the business interests of the employer for which the agreement is designed to protect. Employees, including physicians, should seek legal advice regarding the enforceability of non-compete clauses and potential consequences for violating them.
For more information, please contact John Conley or Chelsea Gulinson at 602-792-3500.
[1] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/
[2] The Executive Order is not directed at the use of non-competes to protect owners in business sales. The Executive Order’s purpose is to protect an employee’s ability to work.
[3] Section 5(g) may potentially apply to other types of restrictive covenants, e.g., non-solicitation and non-disclosure agreements.
[4] https://www.forbes.com/sites/tomspiggle/2021/07/16/president-bidens-recent-executive-order-takes-aim-at-non-competes/?sh=20f440f12cc4
[5] https://www.congress.gov/bill/117th-congress/house-bill/1367/text
Dental Services Provider Paid $350,000 for Alleged Improper Medicaid Billing
On August 11, 2021, the U.S. Department of Justice (DOJ) issued a press release announcing a $350,000 settlement between the federal government, Cornell Scott Hill Health Corporation (“Cornell”), a Federally Qualified Health Center (“FQHC”), and the State of Connecticut to settle Medicaid fraud claims asserted against Cornell.
As a FQHC, Medicaid pays Cornell for certain services on an “encounter-based” reimbursement structure. Per federal law, claims for dental services, paid on an encounter-basis, are limited to one all-inclusive encounter per day, which should include all dental services rendered to a patient during his or her visit. The government alleged that Cornell improperly billed Connecticut’s Medicaid program for prophylactic cleaning and dental exams by requiring Medicaid patients to receive prophylactic cleanings and dental exams on different days so that Cornell would receive payment for two encounters instead of one. To resolve the allegations against it, Cornell paid $350,000 to the federal and Connecticut state governments. It also agreed to change its policy by offering Medicaid patients the option of scheduling their prophylactic cleaning and dental examination for the same day.
Earlier this year, in a January 2021 press release, the DOJ announced that it obtained more than $2.2 billion in settlements and judgments from civil fraud cases in the fiscal year that ended in September 30, 2020. $1.8 billion of that amount represented federal losses that were recovered from the health care industry. Many cases also included the recovery of millions of dollars for state Medicaid programs. This recent settlement with Cornell should prompt healthcare providers who are serving Medicaid beneficiaries to proactively assess their billing practices and policies to ensure that their policies are compliant with federal and their state’s Medicaid laws.
To review the August 11, 2021 Press Release from the U.S. Department of Justice, visit https://www.justice.gov/usao-ct/pr/health-center-pays-350k-settle-improper-billing-allegations-related-medicaid-dental.