EVEN MORE VAX NEWS: FLORIDA’S RESTRICTIONS ON VACCINATION MANDATES

Posted On November 29, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

November 24, 2021

 

On the same day we were preparing our blog discussing the status of federal vaccination mandates applicable to private employers, the state of Florida enacted its own law significantly restricting—but not prohibiting—Florida private employers’ ability to impose vaccination mandates. 

Here is a quick rundown of this law as it applies to private employers subject to this law.

NOTE: The law also contains provisions relating to public employers, including educational or government institutions, which are not covered here.

  • The law applies to full-time, part-time or “contract” employees.
  • Private employers may impose a COVID-19 vaccination mandate in the workplace but if they do so, they must permit employees to choose to be exempt for any one of the following reasons:
    • Medical reasons. The statute states this also includes pregnancy or expectation of pregnancy. The employee is required to submit a statement from a medical provider certifying the COVID-19 vaccination is not in the best medical interest of the employee.
    • Religious reasons. Employees may receive an exemption based on a sincerely held religious belief – BUT Inquiries into the veracity of the employee’s religious beliefs are prohibited according to the state’s suggested exemption form.
    • COVID-19 Immunity from Prior Infection. Employees will need to provide “competent medical evidence that the employee has immunity to COVID-19, documented by the results of a valid laboratory test performed on the employee.” 
    • Periodic testing. Employees must be permitted to opt-out of a private employer’s vaccination requirements through testing “at no cost to the employee.”
    • Use of employer-provided personal protective equipment (PPE).This applies to employees who present “an exemption statement indicating that the employee agrees to comply with the employer's reasonable written requirement to use employer-provided personal protective equipment when in the presence of other employees or other persons.”
  • Employers are required to use forms created by the Florida Department of Health with respect to each exemption or substantially similar forms. These forms can be found here.
  • If an employer receives a completed exemption form for any of the 5 reasons stated above, the employer must allow the employee to opt out of its mandatory vaccination policy.
  • There is no private right of action under this law, but employees may report violations to the Florida Department of Legal Affairs.
  • Violations for which complaints can be filed include: 1) not being offered an exemption, 2) being improperly denied an exemption, or 3) being terminated as a result of a vaccine mandate.
  • For nontermination violations, the employer must be notified of the violation and given an opportunity to cure.
  • If an employer improperly terminates an employee as a result of the vaccine mandate, the Florida Attorney General has the authority to impose the following fines:
    • Up to $10,000 for private entities employing less than 100 people
    • Up to $50,000 for private entities employing 100 people or more
  • **The Attorney General may not impose a fine on an employer that reinstates a terminated employee with back pay.
  • Finally, the law directs the Florida Department of Health, Department of Legal Affairs, and the Department of Economic Opportunity to develop emergency rules to implement the law, which are expected to be out on or before December 4th. Employers will hopefully receive more guidance from these rules.

Tips for Employers

  • The fate of the OSHA ETS is still undetermined. If you are a Florida employer subject to the OSHA ETS and this law, you should consult with your attorney on next steps.
  • Employers in Florida who are also subject to the Interim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers which we discussed here OR are federal contractors or subcontractors subject to Executive Order (“EO”) 14042 which we discussed here should consult with their attorney. To the extent there is a direct conflict, the IFR and CMS might preempt this Florida law.
  • Employers mandating vaccinations who are subject to this law should, if they have not already done so, implement a robust process on exemption requests.
  • This law does not prohibit a private employer subject to this law from imposing vaccination mandates but as noted above, it imposes additional requirements.

Also, just in case you missed our previous blogs we prepared on vaccination laws, they can be here, here, here and here.   And as always, we will continue to keep you posted on key developments in this area.

Additional Resources

Florida Statute: h0001Ber.docx (myfloridahouse.gov)

Florida Department of Health COVID-19 Vaccination Exemption Forms | Florida Department of Health (floridahealth.gov)

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for our ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

YET ANOTHER UPDATE ON VACCINATION MANDATES

Posted On November 18, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

November 18, 2021

 

Yes, we have yet another blog on the current status of the federal vaccination mandates.  Our previous blogs on this topic can be found here, here  and here.

Here are some key updates and links to important resources.

  • On Friday, November 12th, the 5th Circuit Court of Appeals, as we previously reported here, issued an order continuing the temporary stay of the OSHA Vaccination and Testing Emergency Temporary Standard (“ETS”) pending further judicial review.  The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order."
    • As a refresher, the OSHA ETS, published November 5th in the Federal Register, required private employers with 100 employees or more to implement employee vaccination or weekly testing requirements by January 4, 2022. The applicable ETS is here.
    • The 5th Circuit’s opinion continuing the temporary stay can be found here.
  • Then, OSHA announced that it is suspending “activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
    • OSHA’s statement can be found here.
  • On the afternoon of November 16th, the Judicial Panel of Multidistrict Litigation, based upon a random selection, announced that the 6th Circuit Court of Appeals (which typically presides over disputes arising in Ohio, Michigan, Tennessee and Kentucky) will decide, in one consolidated action, challenges to the OSHA ETS.
    • The November 16th consolidation order can be found here.

Now what?

  • The fate of the OSHA ETS is undetermined. Right now, and as we previously reported, the stay is temporary. But, OSHA is standing down on enforcing the ETS until the courts resolve. If you are an employer subject to the OSHA ETS, you should consult with your attorney on next steps.
  • Regardless of the outcome of the OSHA ETS, nothing prevents employers from voluntarily implementing a mandatory vaccination and/or testing policy.
  • The OSHA ETS stay has no impact on employers subject to the Interim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers which we discussed here.
  • The OSHA ETS stay has no impact on federal contractors or subcontractors subject to Executive Order (“EO”) 14042 which we previously discussed here.
  • Therefore, employers subject to the IFR and EO 14042 must move forward with their mandatory vaccination requirements.
    • The deadline for federal contractors to get vaccinated is pushed back to January 18, 2022, per an updated Guidance from the Safer Federal Workforce Task Force which can be found here.

Don’t worry, we know this is changing quickly. We are monitoring and will continue to keep you posted!

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

3 FEDERAL VACCINATION MANDATES – WHICH ONE APPLIES TO YOUR BUSINESS?

Posted On November 15, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

November 15, 2021

 

By now, you and most employers have heard about OSHA’s Vaccination and Testing Emergency Temporary Standard (“ETS”) which requires private employers with 100 employees or more to implement employee vaccination or weekly testing requirements by January 4, 2022.  Our updates on this can be found here and here. The applicable ETS is here.

BUT not all private employers, even those with 100 employees or more, are subject to the OSHA ETS. Instead, they may be subject to the Interim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers or Executive Order (“EO”) 14042 applicable to federal contractors or subcontractors. If a workplace is already covered by EO 14042 or the IFR, the OSHA ETS will not apply.

Even though the ETS, EO, and IFR all contain vaccination mandates, each have important differences and specific requirements. But, the vaccination deadline for all three is January 4, 2022.

OSHA ETS

We previously reported here that on November 6, the 5th Circuit Court of Appeals issued a temporary stay of the OSHA ETS.  As we were writing this blog, on November 12, the 5th Circuit issued another order continuing the temporary stay of the OSHA ETS pending further judicial review.  (No rest for the weary! ) The opinion can be found here.  Also, check out the links below for additional information on the stay and the Court’s opinion.

This stay will not impact the vaccination mandates contained in the EO and IFR.  And as we previously advised, employers subject to the ETS should continue to plan for compliance as the stay is temporary.

Out of the three mandates, only the OSHA ETS permits regular testing instead of a mandatory vaccination policy. The OSHA ETS clearly permits employees to receive reasonable time, including up to four hours of paid time to receive each vaccination dose and reasonable time and paid sick leave to recover from vaccination side effects.

OSHA ETS also provides that employers who do not comply with the vaccine or paid time off requirements may face fines of up to $14,000 per violation, which is not contained in the IFR or EO.

The OSHA ETS specifically provides that it will not apply to workplaces already covered by the IFR or EO 14042, so read on!

CMS Interim Final Rule

What is it?

On November 4, 2021, CMS issued the IFR requiring health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated by Jan. 4, 2022.  For more information see: Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies | The White House.

As noted above, the IFR does not provide a testing alternative for unvaccinated staff.

What Entities are Subject to it?

  • Here is a list of the facilities subject to the IFR:

    ● Ambulatory Surgical Centers (ASCs) ● Hospices ● Psychiatric residential treatment facilities ● Programs of All-Inclusive Care for the Elderly (PACE) ● Hospitals ● Long Term Care Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes ● Intermediate Care Facilities for Individuals with Intellectual Disabilities ● Home Health Agencies ● Comprehensive Outpatient Rehabilitation Facilities ● Critical Access Hospitals ● Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services ● Community Mental Health Centers (● Home Infusion Therapy (HIT) suppliers ● Rural Health Clinics Federally Qualified Health Centers ● End-Stage Renal Disease (ESRD) Facilities

  • The IFR does not apply to religious nonmedical healthcare institutions, organ procurement organizations portable x-ray supplies, assisted living facilities, physician’s offices, group homes or home- and community-based services.

Who Must be Vaccinated?

All healthcare employees working at one of the covered facilities described above-- regardless of whether they work in a clinical or non-clinical position.  The IFR doesn’t just apply to employees but also students, trainees, contractors, and  volunteers and any other “staff” with direct or indirect patient contact.   

Are there Exclusions?

The IFR excludes workers who exclusively perform telehealth or support services outside the facility or who have no in person contact with patients or other staff.

Are there Exemptions?

The IFR permits exemptions based upon a  disability, medical condition, or sincerely held religious belief but in doing so, covered entities must ensure they minimize the risk of transmission of COVID19 to at-risk individuals, “in keeping with their obligation to protect the health and safety of patients.”    

The IFR also requires that an independent licensed practitioner acting within the scope of his or her practice, sign and date medical exemptions and provides,

Such documentation must contain all information specifying which of the authorized COVID-19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications; and a statement by the authenticating practitioner recommending that the staff member be exempted from the facility’s COVID-19 vaccination requirements based on the recognized clinical contraindications.

Are there Tracking Requirements?

The IFR requires that providers and suppliers create a process to collect, evaluate, and  track exemption requests including keeping secure documentation on the request, the decision, and any resulting accommodations.

Are there penalties for noncompliance?

The IFR states that non-compliance may result in civil money penalties, denial of payment for new admissions, or termination of the Medicare/Medicaid provider agreement.  It does not provide a specific penalty amount.

EO 14042

What is it?

On September 9, 2021, the White House issued EO 14042, and on September 24, 2021, a corresponding Guidance requiring employees of certain federal contractors and subcontractors to be fully vaccinated.  Testing is not available as an alternative. The EO also contains masking and physical distancing requirements and a designated person to coordinate COVID-19 workplace safety.

Initially, the EO required employees to be fully vaccinated by December 8, 2021, but on November 4th, the White House announced a January 4, 2022 deadline.

What Contractors Are Covered?

We hope you already know if your company is a covered federal contractor but here’s the rundown.  The covered contracts are:  (1) for services, construction, or a leasehold interest in real property; (2) for services covered by the Service Contract Act; (3) for concessions under the Service Contract Act; or (4) in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

The EO generally applies to federal prime contractors and subcontractors, even if they are small businesses, as follows:

  • new contracts to provide services to the federal government on or after November 14, 2021;
  • extensions/renewals after October 15, 2021, of existing contracts for services to the federal government; or
  • when elected in contracts agreed to between October 15-November 13, 2021.

Who Must be Vaccinated?

Any full-time or part-time employees working in connection with a covered contract, or at a covered contractor workplace. In other words, virtually all employees working for a covered federal contractor or subcontractor.

Are there Exclusions?

The EO does not provide an exception to remote workers on the vaccination requirement.

The EO provides a limited vaccination exception for employees beginning work on a “urgent, mission-critical need.”  In such situations, the unvaccinated employee must become fully vaccinated within 60 days after beginning the work and the employer must comply with masking and physical distancing requirements.

Are there Exemptions?

Like the ETS and IFR, the EO permits disability, medical, or religious exemptions as permitted under applicable law.

Are there penalties for noncompliance?

The Executive Order and Guidance do not address penalties for employer noncompliance.

Additional Resources

BREAKING NEWS: 5th Circuit issues new order continuing its stay of the OSHA vaccine-or-test ETS (ohioemployerlawblog.com)

Fifth Circuit Stays OSHA ETS (natlawreview.com)

Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies | The White House

CMS Omnibus Staff Vax Requirements - External FAQ (508 Compliant)

Biden-Harris Administration Issues Emergency Regulation Requiring COVID-19 Vaccination for Health Care Workers | CMS

Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors | The White House

New Guidance on COVID-19 Workplace Safety for Federal Contractors | The White House

Guidance for Federal Contractors and Subcontractors (saferfederalworkforce.gov)

COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov)

Federal Contractors | Safer Federal Workforce

 

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

 

OSHA'S VACCINATION/TESTING ETS TEMPORARILY BLOCKED BY COURT

Posted On November 08, 2021  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Lana L. Rupprecht, Esq. - Director, Product Compliance

November 08, 2021

 

On Friday, we sent out an update on OSHA’s Vaccination and Testing Emergency Temporary Standard (“ETS”) which requires private employers with 100 employees or more to implement employee vaccination or weekly testing requirements by January 4, 2022. This blog can be found here and the ETS is here.

Shortly after its publication in the Federal Register, various states, businesses, and private advocacy groups filed legal actions against the government challenging the ETS in the 5th, 6th, 8th, and 11th U.S. Circuit Courts of Appeals. These actions generally assert that the ETS exceeds OSHA’s statutory authority and that implementation of the ETS will cause irreparable harm (i.e., employee resignations, “ruinous fines” and “employees taking an irreversible vaccine”).

On Saturday, November 6, 2021, the 5th Circuit Court of Appeals in New Orleans, in response to a joint petition from Louisiana, Mississippi, South Carolina, Texas and Utah and several interested businesses, ordered a temporary pause of the ETS pending expedited judicial review.  The Court stated, “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.” The opinion can be found here.   

The Court directed the government to respond to the motion for permanent injunction by Monday (which is today!) at 5:00 p.m., and the petitioners to file a reply by Tuesday (tomorrow) at 5:00 p.m.

 

So, what does this mean for employers?

First, employers who wish to implement mandatory vaccination or testing requirements outside of the ETS may still do so.  Regardless of the outcome of the court challenges, there is nothing prohibiting employers from moving forward with a mandatory vaccination or testing policy.  Just remember to make accommodations for medical conditions that contraindicate a vaccination, disabilities and sincerely held religious beliefs.

This is a dynamic and fast-moving situation with potential compliance deadlines just around the corner – December 6th and January 4th. Therefore, employers should, in the meantime, continue with compliance preparation so they are ready if the ETS goes forward.  

Stay tuned! We are monitoring this and will keep you posted.  

 

Additional Resources

Information about the various states filing petitions relating to the ETS in the 5th Circuit may be found at the following links:

Mississippi Attorney General (state.ms.us)

South Carolina Attorney General (scag.gov)

Utah Attorney General (utah.gov)

Louisiana Attorney General (state.la.us)

Texas | Office of the Attorney General (texasattorneygeneral.gov)

 

Matrix Can Help!

Matrix offers ADA and vaccine exemption services for its clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

 

OSHA’S ETS IS HERE-NOW WHAT?

Posted On November 05, 2021  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Lana L. Rupprecht, Esq. - Director, Product Compliance

November 05, 2021

 

OSHA’s long-awaited Vaccination and Testing Emergency Temporary Standard (“ETS”) for private employers with 100 or more employees has arrived. The ETS, which can be found at Federal Register: COVID-19 Vaccination and Testing; Emergency Temporary Standard, requires the full vaccination (or the beginning of weekly testing) of covered employees by January 4, 2022.

Here are noteworthy points about the ETS:

  • Employers must determine, obtain proof, and maintain records of the vaccination status of their employees.
  • Employers must establish a mandatory vaccination policy OR an alternative policy requiring regular testing where unvaccinated employees submit to COVID-19 testing at least every 7 days and wear face coverings in the workplace.
  • Employers with a mandatory vaccination policy must require all current and new employees to be fully vaccinated –i.e., two weeks after receiving both shots of a two-dose vaccination or one dose for a single-dose vaccine. 
  • Effective dates:  Employees must be fully vaccinated and/or the employer must implement weekly testing by January 4, 2022. Other requirements such as implementing the mandatory policies in compliance with the ETS and masking and temporary removal of COVID-positive employees from the workplace are effective December 6, 2021
  • Employees do not need to be vaccinated if:
  • For vaccinations, employers must provide reasonable paid time for each primary vaccination dose (up to 4 hours per dose) and paid sick leave for recovery time due to side effects associated with the vaccination. 
  • There is no requirement for employers to pay the cost of employee testing.
  • Employees who work from their home, from a location with no other customers or coworkers present, or exclusively outdoors are exempt from the ETS.
  • Unvaccinated employees who have previously been diagnosed with COVID-19 must still meet the mandatory vaccination or weekly testing requirements.
  • Employees who test positive or are diagnosed for COVID-19 – whether previously vaccinated or not – must promptly notify their employer and employers must exclude them from the workplace regardless of vaccination status.

Here is a summary of the standard from OSHA.

US Department of Labor issues emergency temporary standard to protect workers from coronavirus | Occupational Safety and Health Administration (osha.gov)

An excellent summary is also available on this blog:  OSHA’s Vax-or-Test ETS: What Employers Need to Know - Labor & Employment Report (laboremploymentreport.com)

And our buddy Jeff Nowak’s blog specifically takes on the leave of absence requirements of the ETS here:  Under the ETS, What Paid Leave Must an Employer Provide an Employee to Obtain a COVID-19 Vaccine or Test? - FMLA Insights

Below are FAQs, summaries and additional compliance materials on the ETS. 

COVID-19 Vaccination and Testing ETS - Frequently Asked Questions | Occupational Safety and Health Administration (osha.gov)

COVID-19 Vaccination and Testing ETS (osha.gov)

US Department of Labor issues emergency temporary standard to protect workers from coronavirus | Occupational Safety and Health Administration (osha.gov)

COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov)

Matrix Can Help!

Matrix offers ADA and vaccine exemption services for its clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.