Many Occupational Safety and Health Administration (OSHA) rules regarding COVID-19 safety protocols and vaccination requirements soon may no longer apply for home care providers. That is because the agency’s healthcare emergency temporary standard (ETS) is on track to expire today and its vaccination-or-testing ETS is now in the hands of the Supreme Court.
On Monday, Supreme Court Justice Brett Kavanaugh asked the Biden administration to respond to a flurry of appeals to a 6th U.S. Circuit Court of Appeals ruling on Friday. The court that day lifted a national stay on the vaccination-or-testing mandate. In reaction, many entities, including businesses, trade associations and religious organizations, appealed the decision to the Supreme Court. Kavanaugh established a deadline for the Biden administration of 4 p.m. on Dec. 30.
To make matters more complicated, a Centers for Medicare & Medicaid Services vaccination mandate is now back in effect in 26 states, after a decision last week by the U.S. federal appeals court. Stays related to the CMS mandate also have been appealed to the Supreme Court.
Will Vail, an attorney with the Polsinelli law firm, advised home care providers to determine which, if any, federal mandate applies.
“If it is covered by both, then the CMS rule generally will trump the ETS in terms of not allowing a choice and instead requiring vaccinations,” he told McKnight’s Home Care Daily Pulse. “Then it needs to determine how to comply. That is easier said than done. There are several very precise exemptions that are available under these rules, and an agency needs to make sure it is following them exactly.”
He added, the key is to follow the law that “is most protective of employees.”
Meanwhile, since the 6th Circuit Court decision on Friday, OSHA has informed healthcare providers that it is “exercising enforcement discretion” with respect to compliance dates. On Saturday, OSHA stated on its website that it will not issue citations for noncompliance with any requirements of the ETS before Jan. 10. It also does not plan to issue citations for noncompliance with the standard’s testing requirements before Feb. 9 “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
As the vaccination-or-testing ETS hangs in the balance, OSHA’s healthcare ETS is expiring today. The ETS provides guidance to home care and other healthcare employees about workplace protocols surrounding COVID-19. The standard, among other guidance, requires employers to ensure each employee wears a facemask indoors; keep people at least 6 feet apart when indoors; and draw up a written plan to mitigate the spread of the virus. Employers are also required to provide healthcare workers paid time off to get vaccinated and sick leave if they become infected with the virus.
With the expected ending of the healthcare ETS, a large employer ETS exception for those companies that must comply with the healthcare ETS would no longer be available, Vail said.
