The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) federal mandate, which may impact up to 84 million workers, that states team members that work for covered employers must be vaccinated by January 4, or they must get weekly COVID-19 testing and wear a mask.
If your team doesn’t comply, they risk losing their job. Nationwide vaccine mandates have already spurred an estimated 5% of healthcare employees and 1% of all employees across the US to leave their jobs.
The COVID-19 vaccination mandate is controversial, even as it’s clear that steps must be taken to protect more than 84 million US employees and mitigate the effects of the pandemic. President Joe Biden first announced the mandate a few months ago, in September. OSHA issued the mandate with the emergency authority granted to them by the pandemic health crisis. Remember, you can schedule a consultation to learn more about how HR for Health can help!
Update (As of 1/6/2022): When the ETS was first released by OSHA, a U.S. circuit court issued a stay, and that stay has since been lifted and the ETS is in place currently. The Supreme Court will be reviewing this further, and making a final decision.
What Are You Required to Do?
You may have already addressed conflicts related to the COVID-19 vaccine in your dental, optometric, or medical practice. That awareness has already given you and your team a sense of empowerment. You’ve solved the problem. Now, you’ve come to the next stage. If you have more than 100 employees in your dental, optometry, or medical practice, you may have to comply with the latest OSHA vaccination mandate by December 5th and you should look into whether or not you are considered a covered employer regarding this provision. You may already have a requirement in place that requires your team to be vaccinated as part of your policy guide. If you need help to put the document together, you can use our policy guide and declination forms.
Schedule a consultation to learn more about how HR for Health can help!
What Does This Mean for Your Practice? Additional Criteria to Consider
As an additional step in the OSHA mandate, you must pay them for the time it takes to get vaccinated and for the recovery time they might need. At the same time, the mandate requires that your unvaccinated employees begin wearing masks by December 5th, and begin their weekly testing on January 4, 2022.
You are not required to pay for or provide the tests, unless you’re already required by state or local laws or in labor union contracts to do so. According to the White House Fact Sheet, you must remove (quarantine) any employee from your dental, optometry, or medical practice who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider.”
If your employees work remotely and/or if their work is outdoors, those individuals are exempt from the new mandate. This mandate does not apply if you are already covered under the vaccination requirements for OSHA’s Healthcare ETS. However, if you are subject to the OSHA ETS/Mandate provision, it will apply to all of your employees regardless of whether they hold clinical or non-clinical positions.
Legal challenges have already been filed, especially from attorneys general in states that oppose vaccination requirements. We also offer tips for what to do if your employee refuses to comply with the mandate.
Who is Affected by The OSHA ETS/Mandate Release?
If you have more than 100 employees, you may be required to follow the OSHA ETS/Mandate Release provision.
However, as we mentioned above, you’re not required to comply if:
- No other individuals are present at your dental, optometry, or medical practice.
- Your team members work remotely
- They work exclusively outdoors.
In addition, the OSHA ETS/Mandate Release does not affect you if your employees are already covered under the Healthcare ETS (§ 1910.502). Work with HR for Health to ensure you stay compliant and risk-minimal.
What Are State Plans’ Obligations for The OSHA ETS/Mandate?
Under OSHA Section 18, states that wish to assume responsibility for the development and enforcement of “occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated” may submit a State Plan to OSHA for approval.
Based on this provision, Federal OSHA has authorized 25 states, Puerto Rico, and the Virgin Islands to run their own occupational safety and health agencies. Those state-level agencies are still required to adopt an effective Emergency Temporary Standard (ETS) within 30 days. OSHA’s ETS preempts all state and local requirements, “including in states with state plans that ban or limit the authority of employers to require vaccination, face covering, or testing,” according to the rule.
When Federal OSHA issues an emergency temporary standard, the State Plans must amend their standards to be identical or “at least as effective as” the new standard. Or they must show that an existing State Plan standard covering this area is “at least as effective” as the new Federal standard. State Plans have the option to adopt more protective occupational safety and health requirements that could affect your dental, optometry, or medical practice.
State Plans must adopt an ETS that is at least as effective as the OSHA ETS within 30 days, and they must notify Federal OSHA of the action within 15 days. The State ETS must be in effect for the entire duration of the Federal OSHA ETA. State mandates would need to include a vaccination requirement for them to be at least as effective as the Federal OSHA requirements.
Currently, OSHA recognizes that the COVID-19 vaccine is the most protective measure you can take to protect your employees from infection. That’s why OSHA has adopted the vaccine requirement to protect your team in their workplace environment.
Who Is Covered by The CMS Requirement?
You may be required to comply with the requirement set forth for the U.S. Centers for Medicare & Medicaid Services (CMS) if your employees are part of a health care facility that receives federal funding from Medicare or Medicaid programs. It could include your clinical and non-clinical employees. That could include the following:
- Ambulatory Surgery Centers
- Community Mental Health Centers
- Comprehensive Outpatient Rehabilitation Facilities
- End-Stage Renal 2 Disease Facilities
- Home Health Agencies
- Home Infusion Therapy Suppliers
- Hospices
- Intermediate Care Facilities for Individuals with Intellectual Disabilities
- Clinics
- Rehabilitation Agencies
- Psychiatric Residential Treatment Facilities (PRTFs)
- Programs for All-Inclusive Care for the Elderly Organizations (PACE)
- Rural Health Clinics/Federally Qualified Health Centers
- Long Term Care facilities
Of course, other facilities not previously mentioned could be covered by the CMS Requirement if they work with Medicare or Medicaid programs.
Which Staff Are Covered Under This CMS Requirement?
The CMS requirement applies to your team if you participate in Medicare and Medicaid programs. The requirement is not based on whether you or your team interact with patients or have clinical responsibility. The vaccine mandate also covers all your employees regardless of when they were hired or what types of services they provide to your patients.
Additional Resources
- COVID Vaccine Declination Form
- COVID Policy Templates
- COVID Employer Toolkit
- Re-Opening Your Practice After COVID
- 7 Termination Mistakes Infographic
The COVID-19 pandemic and resulting vaccine mandates present challenges for your business or practice, but they’re one of many challenges you face in a leadership position. When you incorporate streamlined, automated solutions into your operations, you benefit from leveraging existing strengths and reducing complexities.
When it comes to standard protocol and modern technology, you can’t do better than HR for Health. The ability to securely store your OSHA ETS documentation — along with virtually all your HR documentation — means your critical operational data isn’t just safe, it’s accessible at a moment’s notice.
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