Biden Administration Rules on Vaccination Mandates

Published November 5, 2021

Yesterday, the Biden administration released two rules mandating vaccination in the workplace. First, the Center for Medicare and Medicaid Services issued an Interim Final Rule (IFR) mandating that health care workers at facilities participating in Medicare and Medicaid to be fully vaccinated –either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4^th. Second, the Department of Labor’s Occupational Safety and Health Administration (OSHA) is issuing an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to ensure each of their workers at is fully vaccinated or tests for COVID-19 on at least a weekly basis by January 4th. OSHA will also require employers to provide paid-time for employees to get vaccinated, and ensure all unvaccinated workers wear a face mask in the workplace.

The facility types covered by the CMS IFR are hospitals, ambulatory surgical centers, dialysis facilities, home health agencies, and long-term care facilities. The requirement applies to both clinical and non-clinical staff at these facilities, including: employees, students, trainees, and volunteers. Additionally, this also includes individuals who provide care, treatment, or other services for the facility and/or its patients under contract. It also applies to physicians admitting and/or treating patients in a facility. This regulation does not apply to physician offices (unless part of a larger system) because they are not subject to CMS health and safety regulations. The CMS IFR takes priority over other federal vaccination requirements. While the IFR goes into effect immediately, CMS will accept comments for 60 days.

Under the OSHA ETS, covered employers will be required to develop, implement, and enforce a mandatory COVID-19 vaccination policy. As alternative to a mandatory vaccination requirement, employers have the option to develop, implement and enforce a policy for employees not fully vaccinated that requires weekly testing and mandatory face coverings while in the workplace. The vaccine mandate applies to all employers under OSHA jurisdiction of at least 100 employees firm- or corporate-wide, but does not include employees who do not report to a workplace where other employees are present. Employers must determine vaccine status of all employees, obtain proof of vaccination from all employees, and maintain records of employee vaccination status. Employers must also provide support for employee vaccination, including at least four hours of paid leave to receive the vaccine, as well as reasonable paid time off for recovery of vaccine side effects. Employees who elect to not receive the vaccination will be subject to weekly testing, but employers are not required to cover those testing expenses. Additionally, all unvaccinated employees will be required to wear a face covering when indoors or occupying a vehicle with other employees. Employers may not prevent any employee from voluntarily wearing a face covering at any time unless its creates a serious occupational hazard.

While comments on the OSHA ETS will be accept for 30 days, the ETS is effective immediately. All requirements other than the testing requirement must be met within 30 days of publication for employees who have not completed their vaccination series. Testing requirements must be met within 60 days for all employees not vaccinated.

Here are links to key documents:

November 4 OSHA and CMS Announcements

White House Fact Sheet: https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/

OSHA ETS Links

Walsh-Zients Op-ed: https://www.usatoday.com/story/opinion/2021/11/04/covid-vaccination-rule-help-end-pandemic/6265864001/

Main DOL ETS page: https://www.osha.gov/vaccinationETS

DOL Resources About the Standard: