CMS Vaccine Mandate Update: Last, but Not Least, Texas Joins the Rest of the Country

On January 13, 2022, the Supreme Court of the United States issued an opinion staying preliminary injunctions issued in cases filed in Missouri and Louisiana challenging the Centers for Medicare and Medicaid Services’ (CMS) COVID-19 vaccination mandate for healthcare providers. The ruling stayed preliminary injunctions applicable to twenty-four states. Twenty-five states were already subject to enforcement under the CMS rule. This left Texas standing alone and in limbo.

SCOTUS Narrowly Allows CMS Vaccine Mandate to Survive; Preemption Battles to Ensue

On January 13, 2022, in a 5-4 split decision, the Court issued an opinion staying the injunctions against the healthcare interim final rule, which allows the Centers for Medicare & Medicaid Services (CMS) to now enforce its vaccine mandate nationwide (with the key compliance dates now being January 27, 2022, and February 28, 2022).

Supreme Court Hears Oral Argument on OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard and CMS Vaccine Rule

On Friday, January 7, 2022, the Supreme Court of the United States heard oral arguments on challenges to the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) and the Centers for Medicare and Medicaid Services’ (CMS) COVID-19 vaccination mandate for certain healthcare providers.

Breaking News on the CMS Vaccination Rule: Less Than 24 Hours After Being Shelved in 10 States, the Rule Is Sidelined Nationwide

In a November 30, 2021, order, a federal judge sitting in Louisiana entered a nationwide preliminary injunction against the Biden administration’s Centers for Medicare and Medicaid Services’ (CMS) interim final rule entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.” The effect of the order is that CMS must immediately “cease all implementation or enforcement of the [CMS] Rule” in the remaining 40 states not covered by an earlier November 29, 2021, order from a federal judge sitting in Missouri that prevented implementation and enforcement of the CMS rule in only 10 states.

Federal Judge Shelves President Biden’s CMS Vaccine Mandate … But in Only 10 States

In a 32-page order issued on November 29, 2021, United States District Judge Matthew T. Schelp entered a preliminary injunction against the Biden administration’s Center for Medicaid and Medicare Services (CMS) interim final rule entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.”

CMS Gives a Boost and Takes a Shot at Full Vaccination for Millions of U.S. Healthcare Workers

Many hospitals and other healthcare organizations started mandating COVID-19 vaccinations for some or all of their workers over the last six months. Now all of the specified Medicare and Medicaid-certified provider and supplier types that are regulated under the Medicare health and safety standards must get all of their workers fully-vaccinated by January 4, 2022, pursuant to the Center for Medicare & Medicaid Services’s Omnibus COVID-19 Health Care Staff Vaccination interim final rule.

Finding Religious Accommodations in Rhode Island’s COVID-19 Vaccination Requirements for Healthcare Workers

Healthcare and healthcare-related employers have not just been at the heart of the fight against the COVID-19 pandemic, they have also recently been on the battleground in the fight over mandatory vaccination. Multiple states and locales have enacted some form of a mandatory COVID-19 vaccination requirement. Many of these vaccination mandates are directed at healthcare workers and state employees. These mandates vary by locality as to where the mandates apply, to whom the mandates apply and in what contexts, and when exemptions apply. And, of course, the federal mandates announced in September 2021 loom in the background.

Biden Administration Will Require Nursing Homes to Vaccinate Employees as a Condition for Receipt of Federal Funding

On August 18, 2021, President Joe Biden announced from the White House that his administration would require nursing homes to vaccinate their staffs against COVID-19 or risk losing Medicaid and Medicare funding. He said that this step was designed to keep people safe amid the rising number of COVID-19 cases across the country caused by the highly transmissible Delta variant. He stated: “With this announcement, I’m using the power of the federal government, as a payer of healthcare costs, to ensure we reduce those risks to our most vulnerable seniors.”

Maryland to Mandate Vaccinations for Healthcare Workers in Hospitals and Nursing Homes, Effective September 1, 2021

As the number of new cases of the Delta variant of COVID-19 continues to grow nationwide, Maryland Governor Larry Hogan announced, on August 18, 2021, measures to prioritize patient safety in nursing homes and hospitals. Effective August 18, 2021, Maryland is requiring employees in the state’s nursing homes and hospitals to provide proof of vaccination or to adhere to a regular COVID-19 screening and testing protocol. This protocol includes mandatory weekly COVID-19 testing on-site for individuals who fail to show proof of full vaccination status and the required wearing of personal protective equipment (PPE) provided by the facility.

The Key to NYC: Unlocking the City Starts With COVID-19 Vaccination Proof for Dining, Fitness, and Entertainment Venues

On August 3, 2021, New York City Mayor Bill de Blasio announced that proof of vaccination would be required for individuals to enter certain indoor establishments. In a first of its kind mandate, New York City officially implemented the “Key to NYC” through Emergency Executive Order 225, which became effective on August 17, 2021.

Encouraging Employees to Get COVID-19 Vaccinations: Are Healthcare Surcharges the Answer?

The number of U.S. workers choosing to be vaccinated plateaued earlier this summer. As a result, employers, many of which hoped to return employees to the workplace in early fall, were left to debate whether to require employees to get vaccinated or to merely “strongly encourage” vaccination. Although many mandatory vaccination policies may pass legal scrutiny, they may nonetheless raise cultural tensions and raise the risk of losing employees in an already tight labor market.

Oregon Enacts Temporary Rule Requiring Healthcare Worker Vaccinations or COVID-19 Testing

In recent weeks, Oregon has seen a sharp rise in the number of COVID-19 cases and hospitalizations due to the more contagious Delta variant of the coronavirus, which threatens to overwhelm local hospitals. On August 5, 2021, the Oregon Health Authority (OHA) adopted a temporary rule on an emergency basis in response to Governor Kate Brown’s direction to curb and prevent the spread of COVID-19 in healthcare settings.

DOJ Releases Memorandum Supporting Employers’ Right to Mandate Vaccines Approved by the FDA for Emergency Use

Growing numbers of private businesses and public entities have announced policies requiring employees and others to be vaccinated against COVID-19 as a condition of employment or as a condition of access to facilities or services. In response to this trend, some have argued that employers and other organizations may not lawfully mandate COVID-19 vaccines that have been only approved for use under an emergency use authorization (EUA) as opposed to full approval by the U.S. Food and Drug Administration (FDA). Commentators and legal advisors have been divided over whether the EUA approval precludes mandating the vaccine. On July 6, 2021, the Office of Legal Counsel of the U.S. Department of Justice (DOJ) issued a memorandum opining that private businesses and public entities are not prohibited from mandating COVID-19 vaccines that have only received approval for use under an EUA.

Expiration of Philadelphia Public Health Emergency Leave Law

On June 15, 2021, Governor Tom Wolf’s administration certified the results of the May 2021 municipal primary election, and thereby formalized the approval of an amendment to the Constitution of Pennsylvania giving lawmakers the broad new power to extend or end disaster emergency declarations. Because the Philadelphia Public Health Emergency Leave law was set to “expire upon the expiration of the Proclamation of Disaster Emergency of the Governor of Pennsylvania related to the COVID-19 pandemic,” and the legislature voted on June 10, 2021, to end the disaster emergency declaration, it is now safe to say that the Philadelphia Public Health Emergency Leave law is no longer in effect.

Mandatory Vaccination Policy Lawsuit Update: Nurses Take a Shot Against Hospital, But Judge Jabs Back

Many workplace leaders have been wondering, “Can we require employees to get the COVID-19 vaccine as a condition of employment?” According to a recent Ogletree Deakins benchmarking survey, most employers are not ready to implement mandatory vaccination policies, and 87.9 percent of employers reported that they currently do not plan to require workers to get the vaccine. On the other end of the spectrum, 7.6 percent of respondents have implemented (or are planning to implement) a vaccination mandate. The rest have been undecided, but a recent court opinion on the legality of such mandatory policies may shift some employers’ feelings about which direction they should go and when.

OSHA Finally Issues Its COVID-19 Emergency Temporary Standard, Confines It to Healthcare

On the morning of June 9, 2021, the White House Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) announced it completed its review of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) for COVID-19. At a hearing later that day before the U.S. House of Representatives Education and Labor Committee, Secretary of Labor Marty Walsh told legislators that OSHA expected to release the ETS by June 10, 2021, and that it would be confined to the healthcare industry. All other industries would receive updated “strong guidance” on safely protecting unvaccinated workers.

Massachusetts COVID-19 Emergency Paid Sick Leave: What Employers Need to Know

On May 28, 2021, Massachusetts Governor Charlie Baker signed into law “An Act providing for Massachusetts COVID-19 emergency paid sick leave.” The act requires eligible Massachusetts employers to provide emergency paid sick leave to employees who meet certain criteria, with reimbursement by the Commonwealth.

DC’s Noncompete Ban—A Law of Unintended Consequences

Just as the calendar was turning to 2021, the Council of the District of Columbia threw District of Columbia employers a late-breaking curveball that most did not see coming. The Ban on Non-Compete Agreements Amendment Act of 2020 (D.C. Act 23-563) was passed by the Council on December 15, 2020, and signed by Mayor Muriel Bowser on January 11, 2021. The legislation, which will create a near-total ban on noncompete agreements, took the Washington, D.C., business community by surprise. The final text is substantially broader than the more modest bill that was proposed originally, and the legislation goes well beyond laws enacted in other jurisdictions to curtail the use of post-employment noncompete agreements.

Vaccine Volunteers: Is “Thank You” Sufficient Compensation?

The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees at least minimum wage for all hours worked up to 40 hours in a workweek and time and one-half for all hours worked over 40 hours in the same workweek. An exception to this rule exists for volunteers, who are not categorized as “employees” under the statute. Typically, volunteers are individuals who donate their time to non-profit, civic, religious, and other charitable organizations.

Cal/OSHA COVID-19–Related Citations May Provide Leverage to Labor Unions and Their Members

A February 2021 California Division of Occupational Safety and Health (Cal/OSHA) press release trumpeted the agency’s enforcement efforts and its recently issued citations for COVID-19–related violations. Cal/OSHA continues to aggressively issue “serious” classification citations to California employers. For example, Cal/OSHA issued “serious” and “willful-serious” citations with hundreds of thousands of dollars in penalties against a sister agency, the California Department of Corrections and Rehabilitation dba San Quentin State Prison, for COVID-19–related violations.

Cal/OSHA Updates Online Resources for California Employers

The California Division of Occupational Safety and Health (Cal/OSHA) recently updated its frequently asked questions (FAQs) guidance, “COVID-19 Emergency Temporary Standards Frequently Asked Questions”. The FAQs clarified some areas of the regulation and provided additional guidance for California employers, particularly construction companies. Under the Emergency Temporary Standards (ETS) adopted on November 30, 2020, California construction companies face specific standards related to transportation and workplace exposures that create unique questions and challenges.