Labor & Employment Developments Blog

While the OSHA Emergency Temporary Standard mandating vaccines for employers with over 100 employees has dominated the news, there are two other federal mandates that impact many employers: the federal contractor rule issued via executive orders and the Centers for Medicare & Medicaid Services (CMS) Rule applicable to medicare and medicaid recipients. In this episode, the current status of these rules will be discussed along with some thoughts on what employers should be doing right now to comply or prepare to comply with the rules.

OSHA ETS: This rule has been stayed by the 5th Circuit and OSHA has agreed to take no further action toward enforcement or implementation until the courts rule on the ETS. The challenges are now consolidated before the 6th Circuit, which has yet to issue a briefing schedule. It is likely that even after the 6th Circuit rules, there will be additional litigation that will most likely be resolved by the U. S. Supreme Court. For now, it seems unlikely that the ETS will go into effect as originally scheduled. 

Federal Contractor Rule: This rule requires covered employees be vaccinated by January 18, 2022 but defines fully vaccinated as occurring two weeks after the last dose of a two-dose vaccine or two weeks after the single dose so the actual deadline to have vaccinations completed in January 4, 2022. The rule is subject to multiple challenges but to date, no stays have been issued so it appears to be going forward.

CMS Rule: The CMS rule requires covered workers to be fully vaccinated by January 4, 2022. This means that first doses of two-dose vaccines must be received by December 6, 2021. This rule has also been the subject of several legal challenges; like the federal contractor rule, the challenges are pending but no stays have been issued to stop the rule from going into effect on schedule.

Employers weighing compliance options need to move quickly if they are covered by the federal contractor or CMS rules. Employers covered by the OSHA ETS should take steps to prepare for compliance but need not act until the legal challenges are resolved or the stay is lifted.

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