VACCINATION MANDATES: BLOG SERIES PART 1
Now that a day has passed, we assume that everyone understands all of the requirements set forth in OSHA’s new Vaccination and Testing ETS (the “ETS”) and the Centers for Medicare & Medicaid’s COVID-19 Vaccine requirement (the “CMS Mandate”). On the slight chance that there are additional questions (read with sarcasm), Hoffman Hlavac & Easterly will be providing a blog series in the coming week to address common employer questions related to the new mandates. Part 1 of the series addresses the potential legal challenges to the mandates, the definition of an “employee” under the ETS, and who is a covered employer for purposes of the ETS. We will also address who is a covered provider under the CMS Mandate.
Do employers have to comply with the ETS and CMS Mandate if lawsuits are initiated challenging the legality of the mandates?
We do expect to see legal challenges to the ETS and potentially the CMS Mandate. With that said, employers should still prepare to be in compliance. The ETS and CMS Mandate will remain in effect if a lawsuit is merely filed challenging its legality. It is not until a court issues an injunction or otherwise issues an order finding the ETS and CMS Mandate unconstitutional that an employer can press the pause button on compliance. Regardless, it is very likely that any injunction or other court order impacting the enforcement of the ETS and CMS Mandate would be immediately appealed by the federal government and continue to be appealed until it reaches the Supreme Court for an ultimate determination. As such, employers need to start preparing as if the ETS and CMS Mandate will be effective and enforced until a court tells us otherwise.
What is an “employe” and who is considered a “covered employer” for purposes of the ETS?
As most people are now aware, a covered employer includes all private employers with 100 or more employees must comply with the ETS. More importantly, in determining the number of employees, employers must include all employees across all of their US workplaces, regardless of where employees perform work (i.e., at home). The employee count includes part-time and temporary or seasonal workers (employed by the company and not a staffing agency), regardless of the number of hours the individual works. For example, if a company located in Pennsylvania has a part-time employee who works at home out of California all of the time, that individual still counts towards the employee head count. The only exception to the employee count is for independent contractors, who excluded from the definition of employee for purposes of the ETS. As an additional example, unlike other laws (e.g. the FMLA) if an company has multiple locations across a state or the country, the company must add up all of the employees at each location to determine the employee head count. Finally, if an employer uses a staffing company, only the staffing agency would count these employed workers for purposes of the 100-employee threshold for coverage under this ETS, not both the staffing agency and the host company.
Which provider and supplier types are subject to the CMS Vaccine Mandate?
The vaccination requirements applies to the following Medicare and Medicaid-certified provider and supplier types: Ambulatory Surgery Centers, Community Mental Health Centers, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, End-Stage Renal Disease Facilities, Home Health Agencies, Home Infusion Therapy Suppliers, Hospices, Hospitals, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services, Psychiatric Residential Treatment Facilities (PRTFs), Programs for All-Inclusive Care for Elderly Organizations (PACE), Rural Health Clinics/Federally Qualified Health Centers, and Long Term Care facilities. The CMS Mandate does not directly apply to other health care entities, such as physician offices, that are not regulated by CMS.
Stay tuned for the next part of this continuing blog series. For questions about how this might affect your workplace or any other labor and employment law topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that effect your workplace, be sure to subscribe to our blog and follow us on social media.