COVID-19, Federal | November 5, 2021

OSHA, CMS Issue Employer-Based COVID-19 Vaccine Rules

This week, the Biden-Harris Administration announced two significant regulatory rules aimed at increasing vaccination rates throughout the country, protecting workers, preventing hospitalization and death, and strengthening the economy.

These rules include:

  • Vaccination Requirement for Employers with 100 or More Employees – The Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) is issuing a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) to require employers with 100 or more employees to:
    • Be Vaccinated or Test Regularly by January 4 – Employers must ensure their employees have received the necessary doses to be fully vaccinated by January 4, 2022. After this date, employers must require any employees who are not fully vaccinated to produce a verified negative test to their employer on at least a weekly basis. Any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 must be removed from the workplace. The Biden-Harris Administration notes that the ETS does not require employers to provide or pay for tests, though employers may be required to pay for testing due to other laws or collective bargaining agreements.
    • Pay Employees for Time to Get Vaccinated – Employers will be required to provide paid-time for their employees to receive their vaccine and, if needed, sick leave to recover from side effects experienced from the vaccine that prevent them from working.
    • Require Unvaccinated Employees to be Masked – Employers must also ensure that unvaccinated employees wear a face mask at all times in the workplace.
    • Reporting and Compliance – Employers will be subject to other reporting and recordkeeping requirements, as detailed by OSHA. While the testing requirement for unvaccinated workers will begin after January 4, employers must be in compliance with all other requirements detailed in the ETS by December 5.
  • Vaccination Requirement for Health Care Workers – The U.S. Centers for Medicare and Medicaid Services (CMS) announced details of its requirements for facilities participating in Medicare and Medicaid, covering more than 17 million workers at approximately 76,000 health care facilities. CMS is requiring workers at these facilities to be fully vaccinated by January 4, and the rule applies to employees regardless of whether their positions are clinical and non-clinical.
  • Requirement Deadline Alignment – To simplify compliance with the requirements, the Biden-Harris Administration is aligning the requirement for federal contractors to be fully vaccinated with the OSHA and CMS deadline of January 4, 2022. The OSHA ETS will not be applied to workplaces subject to the federal contractor requirement or the CMS rule, ensuring that employers will not have to track multiple vaccination requirements for the same employees.

Additional information from the White House is available here.