5th Federal Circuit Court of Appeals Stay’s OSHA Rule Pending A Hearing this Week
The Occupational Health and Safety Administration (OSHA) issued Interim Final Rules making the COVID vaccine or periodic testing of employees compulsory by January 4th. In a separate rule, the Centers for Medicare and Medicaid Services (CMS) required facilities that provide services paid for by Medicare or Medicaid to make sure that their staff is vaccinated against COVID-19.
For the OSHA standard, all covered employers must ensure that their employees have received either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson by January 4th. Any employees who have not received the necessary shots will need to produce a verified negative test weekly. Noncompliant employees must be removed from the workplace. The reporting and recordkeeping requirements are spelled out here.
Last weekend, the 5th U.S. Circuit Court of Appeals temporarily halted implementation of the OSHA vaccine requirement by granting an emergency stay. It’s unclear what will happen next. It’s possible that the U.S. Supreme Court will ultimately determine whether the new vaccine rule is consistent with OSHA’s authority.
CMS is requiring workers at health care facilities participating in Medicare or Medicaid (almost every healthcare facility) to have received the necessary shots to be fully vaccinated by January 4th. The rule covers approximately 76,000 health care facilities and more than 17 million health care workers. Here’s a link to the CMS requirements: Medicare and Medicaid Programs: Omnibus COVID-19 Health Care Staff Vaccination. The 5th Circuit’s ruling applies only to the OSHA mandate (not the CMS requirement).
Editorial Note: Enforcement of the new provisions will be largely up to state governments. Given the fact that Governor Ducey is hostile to vaccine requirements I’m concerned that he will instruct the Arizona Occupational Health and Safety Commission and the Arizona Department of Health Services to ignore and not enforce the new requirements.