News and Insights

Visit regularly for up-to-date information on relevant news, firm announcements and additions to our AZ Health Law Blog.

Written by: John A. Conley, Aaron E. Kacer and Lauren A. Crawford

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.

What mandates presently apply?

Written by: John A. Conley, Aaron E. Kacer and Lauren A. Crawford

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

Written by John Conley and Lauren Crawford

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:
  1. 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.

  2. 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.

Miranda Preston
Written by: Miranda Preston

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

PeriodPayment Received PeriodDeadline to Use FundsReporting Time Period
Period 1April 10 – June 30, 2020June 30, 2021July 1 – September 30, 2021
Period 2July 1 – December 31, 2020December 31, 2021January 1 – March 31, 2022
Period 3January 1 – June 30, 2021June 30, 2022July 1 – September 30, 2022
Period 4July 1 – December 31, 2021December 31, 2022January 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.  

Key Considerations

  • 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.[1]

If you have questions or would like additional information about this topic, please contact Miranda Preston at miranda@milliganlawless.com, or your primary Milligan Lawless attorney.


[1] 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.

By: Robert J. Milligan, Shareholder and Aaron E. Kacer, Associate Attorney

As COVID-19 vaccines become more widely available, health care organizations, medical practices, and other employers may consider whether, and under what circumstances, they will require employees to be vaccinated.  Employers who address this issue must balance the interests of patients and employees, who have a right to a safe office environment, with the interests of employees who have or claim to have legitimate objections to being vaccinated.  Finding balance will raise legal, ethical,[1] and policy[2] issues. 

As to the legal issues, the U.S. Equal Employment Opportunity Commission (EEOC) recently released guidance regarding the extent to which federal laws permit employers to require employees to be vaccinated.[3]  The general rule is pretty straightforward: subject to certain exceptions, employers may require employees to be vaccinated.  As you might expect, the exceptions are less straightforward, relying on terminology that is susceptible to conflicting interpretations. 

The Americans with Disabilities Act (ADA) permits employers to impose “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”[4]  However, if requiring vaccinations “tends to screen out an individual with a disability,”[5] the employer must show that (a) an unvaccinated employee would pose a “direct threat”[6] due to a significant risk of substantial harm to the health and safety of the individual or others, and (b) the threat cannot be eliminated or reduced by a “reasonable accommodation”[7] (which may include remote work or a temporary leave of absence).

Title VII of the Civil Rights Act of 1964 (Title VII) imposes a religious belief exception, which requires employers to provide “a reasonable accommodation”[8] for an employee’s “sincerely held religious belief, practice or observance,” unless the accommodation would pose an “undue hardship.”  For purposes of this religious belief exception, undue hardship is defined as “more than a de minimis cost or burden to the employer.”[9] 

If an employee cites a medical or religious basis for objecting to the vaccine, the employer must engage in a “flexible, interactive process”[10] to determine whether it is possible to accommodate the employer’s and the employee’s interests.  This will not be a simple or clear-cut exercise, given the vagaries of the words and phrases used in the ADA, Title VII, and the EEOC guidance, all of which call to mind Humpty Dumpty’s comments about what words mean.[11] 

Unfortunately, there is no easy way out for employers deciding on whether and how to require employees to get vaccinated.  Employers who do not require vaccinations may face claims by patients and employees who contract, or are concerned about contracting, COVID-19; employers who require vaccinations may face claims by employees who object to that requirement.  Imposing a vaccination requirement seems to be a relatively low-risk option.  Significant difficulties will arise, however, if an employee claims a medical or religious exemption to the requirement.  At that point, seek legal advice to divine the meaning and application of the terms used in the ADA and Title VII, e.g., is a particular accommodation “reasonable,” is a burden “de minimis,” etc. 

This article is informational only and is not, nor should it be taken as, a substitute for, legal advice.


[1]  Gostin, L., et al., Mandating COVID-19 Vaccines, JAMA.  Published online Dec. 29, 2020. doi:10.1001/jama.2020.26553.

[2]  The Importance of COVID-19 Vaccination for Healthcare Personnel, Centers for Disease Control and Prevention, December 28, 2020; https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/hcp.html.

[3]  What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

Technical Assistance Questions and Answers, US Equal Employment Opportunity Commission; updated Dec. 16, 2020, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=.

[4]  42 U.S.C. § 12113(b).

[5]  42 U.S.C. § 12112(b)(6); 42 U.S.C. § 12113(a).

[6]  42 U.S.C. § 12111(3).

[7]  42 U.S.C. § 12111(9); 42 U.S.C. § 12113(a).

[8]  42 U.S.C. § 2000e-2(a); 42 U.S.C. § 2000e(j); Commission Guidelines, 29 C.F.R. § 1605.2(c).

[9]  Commission Guidelines, 29 C.F.R. § 1605.2(e)(1).

[10]  29 C.F.R. § 1630.2(o)(3); see 29 C.F.R. pt. 1630 app. § 1630.9.

[11]  “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”



Next Page »