News and Insights
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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”). 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”). 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.
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.”
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.
 See supra, fn.1.
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”). 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.
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. 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.
 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.
 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.
On June 11, 2021, the U.S. Department of Health and Human Services (HHS) issued new guidance on the use and reporting of Provider Relief Fund (PRF) payments, and announced that PRF reporting will begin on July 1, 2021.
Many health care providers have been anxiously awaiting additional HHS guidance on their obligations regarding reporting of their use of PRF funds. Since January 15th, providers have been able to register their reporting accounts in the PRF Reporting Portal, but the portal has not yet been open for reporting. In its recent guidance, HHS adopted a multiphase reporting system, pursuant to which the deadlines for the provider’s use and reporting of PRF funds are based on the specific dates on which the provider received the PRF payments..
Summary of PRF Use and Reporting Deadlines
|Period||Payment Received Period||Deadline to Use Funds||Reporting Time Period|
|Period 1||April 10 – June 30, 2020||June 30, 2021||July 1 – September 30, 2021|
|Period 2||July 1 – December 31, 2020||December 31, 2021||January 1 – March 31, 2022|
|Period 3||January 1 – June 30, 2021||June 30, 2022||July 1 – September 30, 2022|
|Period 4||July 1 – December 31, 2021||December 31, 2022||January 1 – March 31, 2023|
.The reporting deadlines apply to all recipients who received one or more payments exceeding $10,000 in the aggregate during a Payment Received Period. Recipients who received PRF payments during multiple Payment Received Periods will be required to submit multiple reports.
- The reporting requirements are also now applicable to recipients of the Skilled Nursing Facility (SNF) and Nursing Home Infection Control Distribution, which were not included in prior Post-Payment Notices.
- As set forth in the table above, there are four new deadlines by which providers must use PRF funds, and four new deadlines by which providers must submit their reports to HHS as to how they used the PRF funds.
- The guidance replaces all prior versions of HHS’s Post-Payment Notice of Reporting Requirements documents.
- The reporting requirements set out in the guidance apply to past and future PRF General and Targeted Distributions.
- The reporting requirements set out in the guidance do not apply to recipients of funds from the Rural Health Clinic (RHC) COVID-19 Testing Program, the HRSA COVID-19 Uninsured Program, or the HRSA COVID-19 Coverage Assistance Fund.
- The updated guidance extends the time in which providers are required to complete their report from 30 days to 90 days after the end of the Payment Received Period.
- HHS issued updated PRF FAQs, clarifying PRF funding and reporting. HHS added some new FAQs, and removed some previously issued FAQs.
- HHS issued an updated Reporting Portal FAQ. In this FAQ, HHS announced that the PRF Reporting Portal will open July 1, 2021.
- Failing to report within the applicable time period(s) is a breach of the Terms and Conditions applicable to the recipient of the PRF distribution, and may result in recoupment of PRF funds received.
If you have questions or would like additional information about this topic, please contact Miranda Preston at firstname.lastname@example.org, or your primary Milligan Lawless attorney.
 The Terms and Conditions applicable to the recipients of each type of PRF distribution require the recipient to submit reports as specified by HHS in future program instructions. The Terms and Conditions also provide that non-compliance with the Terms and Conditions is grounds for HHS to recoup PRF funds. To view the Terms and Conditions applicable to the various PRF distributions, click here.
UPDATE ON THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT: REVISIONS TO PAID LEAVE BENEFITS, INCLUDING HEALTHCARE PROVIDER EXEMPTION
The United States Department of Labor’s (DOL) Wage and Hour Division has issued revisions to the regulations implementing the paid leave provisions of the “Families First Coronavirus Response Act” (FFCRA). Responding to a recent federal court decision striking down key provisions of the DOL’s previously-issued regulations, the DOL has reaffirmed certain regulations, amended other regulations, and further explained the rationale behind its positions. The revised regulations went into effect on September 16, 2020.
FFCRA PAID LEAVE BASICS
Signed into law on March 18, 2020, the FFCRA authorized an emergency relief package providing support for individuals impacted by the COVID-19 public health emergency, including temporary paid sick and emergency family leave for eligible employees. The law applies to private sector employers with fewer than 500 employees as well as government entities, though certain exceptions may apply.
The FFCRA became effective on April 1, 2020 and is designated to expire on December 31, 2020.
Paid Sick Leave
The FFCRA provides paid sick leave to employees who are unable to work (or telework) due to the following COVID-19-related reasons:
1) The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
2) The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in subparagraph (2).
5) The employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of the son or daughter is unavailable, due to COVID-19 precautions.
6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor.
Under the law, full-time employees are entitled to 80 hours of immediately-available paid sick leave. Part-time employees are entitled to paid sick leave in an amount that is equivalent to their normal work hours in a two-week period.
Employees must be paid their normal rate of pay or minimum wage – whichever is greater. With respect to self-care, paid sick leave is capped at $511/day and $5,110 in the aggregate. In cases in which an employee uses paid sick leave to care for others, the cap is $200/day and $2,000 in the aggregate.
Emergency Family Leave
The FFCRA (as an expansion of the Family Medical Leave Act or “FMLA”) provides up to 12 weeks of emergency family leave (or ten weeks of emergency family leave and two weeks of paid sick leave) to eligible employees who are unable to work (or telework) due to a need to care for a minor child whose school/daycare is closed or because the child’s childcare provider is unavailable due to COVID-19.
Eligible employees are any part-time or full-time employee who has been on the job for at least 30 days.
An employer is permitted to designate the first ten days of emergency family leave as unpaid (although an employee can opt to use vacation time or other paid time off, including paid sick leave provided under the FFCRA, to cover the unpaid time).
Beyond the first ten days, emergency family leave is paid at two-thirds the employee’s normal rate of pay with a cap of $200/day and $10,000 in the aggregate.
Emergency family leave does not change the overall amount of FMLA leave available to employees during an applicable FMLA 12-month period.
THE REVISED REGULATIONS
Narrowing the definition of “healthcare provider”
Under the FFCRA, employers of “healthcare providers” may elect to exclude such employees from taking paid leave. While the initial regulations broadly defined “healthcare provider” to include nearly any person employed in a doctor’s office, hospital, or clinic, the revised regulations significantly narrow this definition to the following:
1) A “healthcare provider” as defined by the FMLA. The definition includes doctors (M.D.s and D.O.s), podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, certain Christian Science Practitioners, and other limited health care providers; or
2) Any other employee of a covered employer who is capable of providing health care services, “meaning he or she is employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” This category of “healthcare providers” includes nurses, nurse assistants, medical technicians, and laboratory technicians.
The revised regulations provide examples of employees who will not be considered a “healthcare provider” for purposes of the FFCRA, including IT professionals, maintenance staff, human resources personnel, records managers, billers, and consultants.
Relaxing the requirement for providing notice and supporting documentation
The initial regulations required employees to provide employers with notice and documentation establishing the need for paid leave prior to taking the leave.
The revised regulations relax that standard. Rather than dictating that employees provide notice and documentation before taking leave, the revised regulations clarify that employees may provide documentation “as soon as practicable.”
In cases in which the need for leave is foreseeable, e.g., an employee knows that his or her child’s school is closed in advance, the DOL anticipates that the employee generally will provide notice before taking leave.
Reiterating paid leave is only available to employees “unable” to work/telework
An employee’s reason for taking paid leave must be the sole reason the employee is unable to work/telework (i.e., “but-for” the employee’s need to take leave, the employee would otherwise be working).
This means that an employee cannot use paid leave if his or her employer closes its worksite or otherwise does not have work available for the employee for reasons other than the employee’s need to take leave (i.e., paid leave is not available to employees who are furloughed, laid off, or on a reduced schedule due to lack of work or business).
With that said, the revised regulations underscore that employers may not arbitrarily withhold work or reduce an employee’s hours to prevent the employee from taking paid leave. An unavailability of work must be due to legitimate, non-discriminatory business reasons and not simply that an employer is attempting to thwart an employee’s ability to take paid leave.
Clarifying when an employee can take intermittent leave
For employees who are teleworking or working onsite, the revised regulations reiterate that employees may take intermittent emergency family leave or paid sick leave only with the consent of their employer.
With respect to employees who work onsite, the revised regulations also reaffirm that employees can only take intermittent paid sick leave because of a need to care for a minor child whose school/daycare is closed or because the child’s childcare provider is unavailable due to COVID-19 (i.e., employees who work onsite cannot take intermittent paid sick leave for any other qualifying reasons).
The revised regulations also elaborate on the meaning of “intermittent.” The DOL provides an example of an employee’s child who is participating in hybrid learning in which the child attends school only certain days during the week and is at home the remaining days. In this case, the DOL clarifies that an employee who takes emergency family leave, for example, Mondays and Wednesdays (when the employee’s child is not in school) and then works Tuesdays, Thursdays, and Fridays (when the employee’s child is in school) is not considered to be taking intermittent leave (and therefore does not require consent of his or her employer).
TAKEAWAYS FOR EMPLOYERS
Employers should make necessary adjustments to their FFCRA paid leave policies and procedures to ensure compliance with the revised regulations. Importantly, healthcare employers should take note of the DOL’s updated (and much narrower) definition of “healthcare provider” when determining which employees can be exempted from the FFCRA’s paid leave benefits.
The attorneys at Milligan Lawless will continue to update employers on various workplace issues arising from the COVID-19 public health emergency.
If you have any questions regarding how the FFCRA’s paid sick leave or emergency leave requirements affect your workplace, please contact John Conley or Kylie Mote at (602) 792-3500.
U.S. District Court Strikes Down Portions of the Department of Labor’s FFCRA Implementing Regulations
On August 3, 2020, a federal court in New York state struck down portions of the regulations implementing the Families First Coronavirus Response Act (“FFCRA”). In litigation brought by the state of New York against the United States Department of Labor (“DOL”), a U.S. District Court, among other things, substantially narrowed the “health care provider” exception to the FFCRA.
The FFCRA requires employers to provide employees paid leave benefits in connection with certain COVID-19-related absences. The health care provider exception allows employers to deny FFCRA’s leave benefits to employee health care providers. The court rejected as too broad DOL’s regulatory definition of “health care provider” which included:
“[A]nyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions, as well as any individual employed by an entity that contracts with any of these institution . . . .”
DOL Final Rule at 19,351 (§ 826.25). Instead, after recognizing its applicability to the FFCRA, the court applied the narrower Family Medical Leave Act “health care provider” definition:
“(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.”
29 U.S.C. § 2611(6); State of New York v. U.S. Department of Labor, et al., No. 1:20-cv-03020 (S.D. N.Y. Aug. 3, 2020).
In that same decision, the court also: rejected a DOL rule which denied FFRCA leave to employees in the absence of available work for the employee to perform (e.g. during a furlough); vacated a DOL rule requiring employer consent to intermittent use of FFCRA leave; and struck down a DOL requirement that employees provide FFCRA documentation in advance of taking leave.
The court’s decision substantially affects key components of the FFCRA. Significantly, for healthcare sector employers, it may reduce the ability to exempt most employees from FFCRA leave benefits. It also raises the question of potential liability for employers who denied employees FFCRA leave based upon DOL’s now-vacated regulations. Finally, the impact of the court’s decision outside the state of New York is currently unclear. Employers are encouraged to speak with an attorney if they have questions about FFCRA compliance or other employee leave-related matters.
For more information regarding the implications of the court’s decision, the FFCRA or other employment-related matters, please contact attorney John Conley at (602) 792-3500.