OSHA Non-Healthcare Employer Vaccine Requirement Withdrawn

1/26/22 — Following the recent Supreme Court ruling striking down the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), OSHA is withdrawing the ETS effective January 26. Neither this OSHA ETS nor the Supreme Court ruling pertained to healthcare personnel vaccination; however, healthcare personnel employed by facilities receiving Medicare/Medicaid reimbursement are required to receive COVID-19 vaccination under a CMS interim final rule that has been upheld by the Supreme Court.

To summarize OSHA’s COVID-19 response activities in 2021:

• OSHA COVID-19 Healthcare ETS – effective June 21, 2021
  • The purpose of this ETS was to protect employees in healthcare settings from exposure to COVID-19 in the workplace. Requirements included provisions related to development of a COVID-19 plan, patient screening and management, standard and transmission-based precautions, PPE, aerosol-generating procedures, physical distancing and barriers, cleaning and disinfection, ventilation, employee screening, training, reporting and recordkeeping, and protection from retaliation by employers.
  • December 27, 2021 – OSHA withdrew all provisions of this ETS, except for the reporting and recordkeeping provisions. In its withdrawal announcement, OSHA noted that it would be including worker protections against COVID-19 hazards in a boarder infectious disease standard, but this could not be completed within the 6-month lifespan of an ETS.
  • Read APIC’s comments to OSHA on the COVID-19 Healthcare ETS.
• OSHA COVID-19 Vaccination and Testing ETS – effective November 5, 2021
  • This ETS required employers with 100 or more employees to develop and implement a plan for all employees to be fully vaccinated against COVID-19 or provide weekly negative COVID-19 tests and wear face coverings at work.
  • This ETS did not cover healthcare personnel who were employed by facilities receiving Medicare/Medicaid reimbursement. These workers are covered under a parallel CMS COVID-19 vaccination rule (see below).
  • Read APIC’s comments to OSHA on the COVID-19 Vaccination and Testing ETS.
  • On January 13, the U.S. Supreme Court struck down the OSHA Vaccination and Testing ETS in National Federation of Independent Business v. OSHA, claiming the requirement was beyond the scope of OSHA’s authority since COVID-19 is not exclusively a workplace hazard.
  • OSHA withdrew this ETS effective January 26, 2022.
• CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule – effective November 5, 2021
  • This rule adds to conditions of participation for Medicare- and Medicaid-certified healthcare providers and suppliers by requiring their employees to be vaccinated against COVID-19.
  • On January 13, the U.S. Supreme Court upheld the CMS rule in Biden v. Missouri, claiming that CMS has the authority to set participation requirements for providers that voluntarily participate in the Medicare and Medicaid programs.
  • The CMS rule requiring healthcare staff COVID-19 vaccination remains in effect.
  • Read APIC’s comments to CMS on the COVID-19 Health Care Staff Vaccination rule.

Next Steps: OSHA plans to incorporate workplace protections against COVID-19 hazards into a broader infectious disease standard. APIC will continue to work with OSHA to ensure that this standard is evidence-based, actionable, and provides healthcare providers and facilities with the flexibility they need to respond to immediately to widespread outbreaks.