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Nationwide Stays of CMS, OSHA Vaccine Mandates Dissolved, Some New Deadlines Loom for Florida Employers

December 20, 2021 Articles COVID-19 Labor & Employment Labor & Employment Blog

As some may have heard, last week the appellate courts dissolved the nationwide injunctions preventing the OSHA and CMS vaccine mandate regulations from going into effect. So, what does that mean for Florida employers?

(Please note that this article focuses on the status of the OSHA and CMS federal regulations only. It does not discuss or consider the interactions of these regulations with the Florida state law addressing employer vaccination policies.)

New Deadlines for OSHA Compliance

For the OSHA mandate that applies to employers with 100 or more employees, the agency has set new deadlines for compliance. Recall that for OSHA, the employer has a choice: issue a mandatory vaccination policy or a vaccine-or-test policy. Now, that needs to be done by January 10, 2022, along with, among other things, the following: (1) determining the vaccination status of all employees, (2) requiring PPE for the unvaccinated, (3) requiring employees to promptly notify employers of their positive COVID-19 test or diagnosis, (4) keeping such individuals out of the workplace, and (5) maintaining other record and reporting requirements.

Then, by February 9, 2022, testing must begin (if the vaccine-or-test policy has been selected).

These new deadlines only apply if employers are making reasonable, good-faith efforts to come into compliance with the standard. This likely means that employers should use this time to implement their COVID-19 vaccination policies, to keep getting proof of vaccinations, to inform unvaccinated employees about PPE and testing regimens (if chosen), and to decide how to implement weekly testing.

No New Deadlines for CMS Compliance

The preliminary injunction of the CMS vaccine mandate is no longer in effect in Florida. We are looking for updated CMS guidance on whether enforcement in the non-enjoined states like Florida will resume — if at all. Given that the initial deadline passed about 10 days ago, this issue has taken on special importance.

The last comment from CMS came earlier this month, right after the original injunctions were put into place. At that time, CMS instructed its surveyors not to check for vaccine mandate compliance while the injunctions were in effect:

While CMS remains confident in its authority to protect the health and safety of patients in facilities certified 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. Accordingly, while these preliminary injunctions are in effect, surveyors must not survey providers for compliance with the requirements of the Interim Final Rule.

A reasonable interpretation of these instructions is that there should be no survey activity, even when an injunction is lifted, unless CMS states otherwise.