Federal Agencies Focus on COVID Vaccines & Tests

As a result of decisions by the United States Supreme Court, the Occupational Safety and Health Administration (OSHA) has withdrawn its temporary emergency standard while the Centers for Medicare and Medicaid (CMS) issued updated guidance with new compliance dates for those states that unsuccessfully challenged vaccine mandates for healthcare facilities that participate in Medicare and Medicaid. A federal district court issued a nationwide injunction against the vaccination requirement for federal employees and three federal agencies issued guidance on the requirement that health insurance plans cover the cost of COVID-19 tests. The National Labor Relations Board (NLRB) announced that it plans to issue joint employment regulations and the Equal Employment Opportunity Commission (EEOC) released the deadline date for the EEO-1 report.

OSHA Withdraws ETS – The Occupational Safety and Health Administration (OSHA) has announced the withdrawal, effective January 26th of its emergency temporary standard (ETS) that required employers with at least 100 employees either to adopt a mandatory COVID-19 vaccination requirement or have employees undergo regular testing and wear a mask while at work. OSHA took this action in response to the decision by the United States Supreme Court that stayed the ETS. Although OSHA withdrew the ETS, it intends to proceed with making it a permanent rule, stating it “is not withdrawing the ETS to the extent that it serves as a proposed rule…and this action does not affect the ETS’s status as a proposal…or otherwise affect the status of the notice-and-comment rulemaking.”

CMS Issues Vaccine Guidance – The Centers for Medicare and Medicaid Services (CMS) has issued new guidance setting updated deadlines for those 24 states that challenged the vaccine mandate for those facilities that participate in Medicare and Medicaid. The guidance was issued following the decision by the United States Supreme Court that the vaccine requirement could be implemented. For the following twenty-four states, they must ensure that their employees receive at least one dose of a COVID-19 vaccine by February 14th and be fully vaccinated by March 15th:

Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming.

The State of Texas had a separate case challenging the vaccine mandate pending in federal court, which has been resolved so Medicare and Medicaid participating healthcare facilities in Texas need to ensure that employees have their first vaccine dose by February 19th and be fully vaccinated by March 21st. For all other states, their employees need to be fully vaccinated by February 25th.

Nationwide Injunction Issued Against Federal Employee Vaccine Mandate – The United States District Court for the Southern District of Texas, Galveston Division has issued a nationwide preliminary injunction in the case of Feds for Medical Freedom, et al. v. Biden, et al. preventing the federal government from mandating that its’ employees receive the COVID-19 vaccine. According to the District Court, this case was about “whether the President can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment. That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far.” The Justice Department has filed an appeal of the decision to the United States Court of Appeals for the Fifth Circuit. As a result of the injunction, the Safer Federal Workforce announced, “To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation, the federal government will take no action to implement or enforce the COVID-19 vaccination requirement.”

In September, President Biden issued Executive Order 14043 that required all federal employees be vaccinated, obtain a medical or religious exemption or risk being fired. The District Court believed “Regardless of what the conventional wisdom may be concerning vaccination, no legal remedy adequately protects the liberty interests of employees who must choose between violating a mandate of doubtful validity or consenting to an unwanted medical procedure that cannot be undone.” While acknowledging that vaccines offer the best way to avoid serious illness from COVID-19, the public interest could be served through less restrictive measures citing masking, social distancing, and remote work as alternatives.

The vaccination requirement for federal contractors set forth in Executive Order 14042 is also subject to a nationwide preliminary injunction due to a ruling by the United States District Court for the Southern District of Georgia, which was appealed by the federal government to the United States Court of Appeals for the Eleventh Circuit which denied the request to lift the preliminary injunction. The United States Court of Appeals for the Sixth Circuit upheld a preliminary injunction limited to Ohio, Kentucky, and Tennessee against the federal contractor vaccine mandate. Similar appeals also are pending in the United States Court of Appeals for both the Fifth and Eighth Circuits.

Health Plans Need to Cover COVID-19 Tests – The Departments of Health and Human Services, Labor, and Treasury have issued guidance on the requirement effective January 15, 2022 that group health insurance plans cover over-the counter COVID-19 tests without prior authorization of the need for testing from a health provider or cost sharing. According to the guidance, health plans do not need to cover COVID-19 testing for employment purposes.

The departments encourage health plans to establish direct coverage programs that allow participants to obtain tests without paying up-front. Where health plans have a direct coverage relationship through a pharmacy network and direct shipping program, reimbursement for tests obtained from non-participating sources is limited to the lower of the actual cost or $12 per test. Health plans can limit the number of tests covered to eight tests per participant during each 30-day period or calendar month.  

NLRB Plans Joint Employer Regulations – As part of the most recent federal regulatory agenda, the National Labor Relations Board (NLRB) announced that it will engage in rulemaking concerning the standard for determining whether two employers are joint employers under the National Labor Relations Act. The tentative date for the publication of a notice of proposed rulemaking is February 2022.

2021 EEO-1 Report Deadline Announced – The Equal Employment Opportunity Commission (EEOC) announced that the EEO-1 data collection will tentatively open on April 12, 2022, and the tentative deadline to file the report is May 17, 2022. According to the EEOC, this is a mandatory report required by Title VII of the Civil Rights Act of 1964 to be filed annually by all private sector employees with at least 100 employees and federal contractors with at least 50 employees. The report includes demographic workforce data by race/ethnicity, sex, and job categories.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.