Last month, we provided an update on the COVID-19 vaccination mandates issued by OSHA (applicable to employers with more than 100 workers) and CMS (applicable to healthcare workers in certain settings). On December 15, 2021, the U.S. Circuit Court of Appeals for the Fifth Circuit partially lifted the stay on the CMS mandate. Just two days later, on December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the nationwide stay on the OSHA mandate. What do healthcare providers need to know?
OSHA Mandate: Stay Lifted Nationwide, New Deadlines Released
The November 6, 2021, stay issued by the Fifth Circuit applicable to the OSHA mandate was dissolved in a ruling issued by the Sixth Circuit late on Friday, December 17, 2021. As noted prominently on its website, OSHA now states, to “account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS.” Specifically, “[t]o provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” (Emphasis added.)
It is our understanding that the states that challenged the OSHA mandate are in the process of appealing the Sixth Circuit’s decision to the U.S. Supreme Court. In the meantime, those employers who were initially subject to the OSHA mandate must now resume the process to implement the OSHA mandate according to the new deadlines.
CMS Mandate: Stay Lifted in 26 States
In its ruling last week, the Fifth Circuit lifted the nationwide stay on enforcement of the CMS mandate previously issued by a federal district court in Louisiana. Instead, the stay remains in force in the 14 states that brought the suit in Louisiana to challenge the CMS mandate. Another stay on enforcement of the CMS mandate, which was previously issued by a federal district court in Missouri, applies in 10 other states. As a consequence of last week’s ruling by the Fifth Circuit, the stay on enforcement of the CMS mandate has now been lifted in 26 states, including Tennessee, Kentucky, Virginia, North Carolina, and Georgia.
It is currently unclear whether CMS will move forward with enforcing the CMS mandate in the 26 states affected by last week’s ruling. In its most current FAQ guidance on the CMS mandate, CMS states: “While CMS remains confident in its authority to protect the health and safety of patients in facilities funded by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation.”
A similar statement was expressed by CMS in a recent memorandum sent to its state survey agency directors, along with the directive that “while these preliminary injunctions are in effect, surveyors must not survey providers for compliance with the requirements of the [CMS mandate].” It remains to be seen, however, whether the Fifth Circuit partially lifting the stay will result in CMS enforcement efforts in the 26 states affected by the order. If so, we anticipate a clarification of its current website statement regarding its enforcement stance.
What Happens With the Tennessee Anti-Mandate Law?
On November 12, 2021, Tennessee Governor Bill Lee signed a law passed during the recent Special Session meant to counteract the federal vaccine mandates. According to the new law, Tennessee employers are generally prohibited from compelling or taking an “adverse action” against requiring proof of vaccination by any person who objects to receiving the COVID-19 vaccine for any reason. Thus, an employer may not deny “employment, privileges, credit, insurance, access, products, services, or other benefits” to its vaccine-hesitant employees nor may it discharge, threaten, or otherwise discriminate against an employee in any manner that affects the employee’s employment. Any person who is “injured” as a result of a violation of these requirements may file a lawsuit for injunctive relief, compensatory damages and attorneys’ fees.
The law further allows the Tennessee State Comptroller to exempt private businesses from complying with this state law in cases where compliance would result in a loss of federal funding (e.g., entities directly subject to the CMS mandate). However, in response to the nationwide stay issued by the federal district court in Louisiana in late November, the Comptroller’s office rescinded the exemptions it had previously granted. Now the question is whether, given the lifting of the stay on the CMS mandate in Tennessee, the Comptroller will resume issuing exemptions.
Currently, the answer appears to be a qualified “yes.” According to a statement published on its website, the Comptroller’s Office acknowledges the Fifth Circuit’s ruling lifted the stay on the CMS mandate that previously applied to Tennessee. The Comptroller’s Office further states: “Although the Comptroller’s Office believes that Medicare & Medicaid providers are already exempt from [the new law], exemptions approved for these entities are now active to the extent the entity qualifies for an exemption and to the extent necessary to comply … as a condition to receipt of federal funds.” Accordingly, previously-issued exemptions appear to now be reactivated and the Comptroller’s Office appears willing to consider new applications for exemptions. Although the statement does not have the force of law, it is noteworthy that the Comptroller’s Office seemingly takes the position that Medicare and Medicaid providers “are already exempt” from the law (whereas the statute itself grants an exemption for private businesses specifically covered under the CMS mandate).
Compliance with the law in light of the Sixth Circuit’s order lifting the nationwide stay applicable to the OSHA mandate presents a more difficult situation. In its FAQ guidance, OSHA states: “OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.” In its ruling, the Sixth Circuit supported this view, stating: “Congress already addressed the issue when it passed the OSH Act, expressing its intention to preempt state and local standards that conflict with OSHA standards.” (See Sixth Circuit Ruling, p. 34). The new Tennessee law, on the other hand, provides no specific exemption process due to compliance with the OSHA mandate.
What Comes Next?
With respect to the CMS mandate, we are currently in a “holding pattern” unless CMS changes its stance on enforcement of its vaccination mandate and any corresponding changes in the timetable for implementation or there are further developments in the litigation over the CMS mandate.
With respect to the OSHA mandate, the choice currently appears to be whether to comply with the OSHA mandate or with Tennessee state law. Unlike the CMS mandate, there are new deadlines for enforcement that have been announced by OSHA. Like the CMS mandate, however, litigation over the OSHA mandate itself is will continue.
Bottom line: stay tuned.
The COVID-19 pandemic and response is an evolving situation. All levels of government are engaged in the process of preparing new legislation, regulations and orders both to stem the spread of the virus and to provide relief to employers and employees. We will continue to monitor the situation and provide updates as applicable, especially as such updates affect healthcare providers and their practices.