Now that OSHA has issued its emergency temporary standard and CMS has issued its own emergency rule, the landscape has changed once again for healthcare employers in terms of addressing employees’ vaccination status.  Fortunately, they now have much more certainty, which allows for more specific and detailed planning to address the myriad vaccination-related requirements that apply for healthcare entities.  The following sets forth key details that healthcare employers should understand as they are establishing their compliance strategies for these obligations.

What different vaccine-related requirements may apply?

For healthcare employers, there may be at least four different vaccine-related legal obligations that apply:

1. The generally applicable OSHA emergency temporary standard broadly requires employers with 100 or more employees, company-wide, to either (a) ensure that the employees are vaccinated against COVID-19 or (b) have those employees provide verified negative tests on a weekly basis.

2. The CMS emergency rule requiring that staff at healthcare facilities participating in Medicare and Medicaid be fully vaccinated.

3. President Biden’s Executive Order requiring that federal contractors and subcontractors ensure employees are fully vaccinated against COVID-19.

4. State-specific requirements in at least 21 states which have issued their own rules requiring healthcare employers to ensure that employees are fully vaccinated (although some allow for negative tests instead, similar to the general OSHA ETS).

When must an employer satisfy these obligations?

Healthcare employers should begin taking steps immediately to address these obligations, if they have not done so already.  Although the White House deferred the testing deadlines under the general OSHA ETS to January 4, the CMS rule requires staff at all covered health care facilities to have received their first dose of a two-shot vaccine or a single dose of a single-shot vaccine to have received those doses by December 5.  Covered healthcare employees who have failed to do so by December 5 may not treat patients.  Even for employers covered only by the general OSHA ETS, that rule requires employees to be “fully vaccinated” by January 4, which can require 6-8 weeks for employees who receive two-dose vaccines, so it is important to begin acting as soon as possible.

How do these various requirements interact with each other?

Employers should prepare to satisfy the most stringent requirements that apply of these various rules.  The OSHA ETS is less stringent than the CMS rule, federal contractor requirements, and some state requirements, but the OSHA ETS expressly provides that it does not supersede or negate those requirements.  For example, although the OSHA ETS requires either vaccination or weekly negative tests, the Executive Order for federal contractors does not.  So, a federal contractor or subcontractor should ensure that covered employees are fully vaccinated by January 4, rather than preparing to rely on negative tests.  Likewise, an employer in a state that requires full vaccination for healthcare employees may not generally rely on weekly negative tests.

How can employers practicably manage these obligations?

Although these rules impose significant requirements on covered employers, they do leave some room for steps that can mitigate the costs and burdens that they create.  An employer’s options will depend on its specific situation, including the states where it employs people, whether it serves as a federal contractor or subcontractor, and the portion of its workforce that has opposed vaccination thus far.  Nevertheless, as an employer is considering how to manage its obligations, it should consider the following factors that may provide at least some relief:

• Possible Testing Alternative.  The OSHA ETS does not require employers to pay for tests.  So, if an employer is not otherwise covered by the federal contractor requirements, the CMS rule, or another rule that requires vaccination without creating a test “exception,” testing can create a route for employers to avoid losing significant numbers of workers who oppose vaccination.  That said, employers should remember that state laws, collective bargaining agreements, or other employment contracts could separately require them to pay for tests.

• Disability and Religious Accommodations.  Thus far, all applicable vaccine mandates allow employers to exempt employees from vaccination requirements when that is required by law as a disability or religious accommodation.  So, if an employee establishes that a disability or sincerely held religious belief prevents them from being vaccinated, the employer does not need to face the prospect of potentially violating a law regardless of how they proceed.  At the same time, events thus far show that it can be difficult (but not impossible) for an employee to establish they need such an accommodation, and healthcare providers (and tribunals) generally have been very reluctant to find that a person may need to not be vaccinated due to a disability except in unique circumstances.  So, at least with respect to legally required accommodations, employers have some additional certainty.

• Verification of Vaccination Status.  The OSHA ETS gives employers more flexibility than expected in terms of obtaining verification of employees’ vaccination status.  Notably, if an employee is not able to produce acceptable proof of vaccination from a healthcare provider, the ETS allows the employee to produce a written attestation from the employee that satisfies certain requirements.  This reduces employers’ exposure to a difficult situation where they otherwise may feel compelled to challenge the employee’s assertion about whether they actually have been vaccinated.  (However, some states may impose higher requirements for this verification.)

• Forms of Acceptable Testing.  Another silver lining for employers covered only by the OSHA ETS is that it allows for a broader range of tests than many expected.  Perhaps most notably, the ETS allows employers to accept “rapid tests,” so long as they are verified by the employer or a healthcare provider.

• Vaccination Incentives.  Generally, the law gives employers significant flexibility to offer employees incentives to become vaccinated.  While there are some limits, in most cases an employer will be able to offer employees a substantial bonus, additional paid leave, and similar incentives if it wishes to use a “carrot and stick” approach to satisfying its vaccination obligations.  The employer should work with a knowledgeable human resources official or with counsel, however, in order to ensure this benefit satisfies applicable laws.  (Employers should note that the OSHA ETS, OSHA’s prior ETS for healthcare employers, and some state laws require an employer to provide certain paid leave for employees to become vaccinated.)

• Local Resources.  As testing options improve, many localities have begun offering free or reduced cost tests to residents.  This can provide another useful option for employers to reduce costs if they are bound only by rules that require vaccination or testing.

As employers continue working to address these numerous and developing obligations, they should continue to watch for further guidance, and consider involving professionals who are knowledgeable about the landscape.  While the compliance obligations are expanding, employers and their advisors also have expanded their ‘playbooks’ of practical steps that can help reduce the issues that these requirements create.