The Occupational Safety and Health Administration, as well as the Centers for Medicare & Medicaid Services, are preparing to issue new requirements that will have a major impact on healthcare employers, as well as other employers across the U.S. On Thursday, the executive branch announced its plans to have OSHA require employers to ensure that employees either (a) become fully vaccinated against COVID-19 or (b) test negative for COVID-19 on a weekly basis. This new standard would apply to all U.S. employers with 100 or more employees, including all such employers in the healthcare industry. This would be the second emergency temporary standard from OSHA that applies to healthcare employers (we covered the prior standard here). Additionally, CMS announced that it will be releasing its own interim rule in October that requires most healthcare employers (including hospitals, ambulatory surgical centers and all other Medicaid and Medicare-certified facilities) to ensure employees are vaccinated as a condition for participating in Medicare and Medicaid.
OSHA and CMS have not yet issued the requirements or fully described what they will require. Nevertheless, there are several key takeaways now for employers. First, because the OSHA standard will allow employees to avoid the vaccine mandate by testing negative on a weekly basis, and because many employees have strongly opposed becoming vaccinated, employers should consider acquiring a sufficient numbers of COVID-19 tests well in advance. (However, before doing so, it would be prudent to watch for whether OSHA will require the tests to satisfy specific requirements and whether CMS will provide a similar exemption.) Employers also should start to consider the other benefits and drawbacks of focusing on requiring negative tests rather than vaccinations (if that is permissible under any CMS standard that applies to them), such as the fact that an employer may need to pay employees for time spent completing COVID-19 tests. Continue Reading