New Federal Vaccine Mandate for Employers
Last Thursday, November 4th, the Biden Administration issued the federal vaccine mandate they had first announced on September 9th. The mandate was issued in two parts – a rule for healthcare facilities and an emergency temporary standard for all employers with 100 or more employees.
To be clear, I do not support either a federal or state vaccine mandate. I do not believe this enormous “one-size-fits-all” vaccine mandate is within the purview of the federal government’s authority. Additionally, this policy will make the workforce shortage worse and drive up the costs of healthcare and other goods and services throughout the economy. It will also reduce productivity and economic growth as healthcare facilities and businesses divert incredible amounts of time and resources to implement the mandate and create systems to track vaccine status over the next 8 weeks.
Current Vaccine Data: According to the CDC more than 70% of adults are already fully vaccinated and 68.5% of people aged 12 and over are fully vaccinated. In addition, 80.8% of adults, and 78.9% of those aged 12 and older, have had one dose. This exceeds the President’s goal issued last spring that 70% of the population have at least one dose. It also puts us in the range that Dr. Faucci and others advocated – getting 70%-85% of the adults vaccinated in order to “return to normal.”
Forcing businesses, healthcare facilities and their employees to go through all of this work and stress to force compliance on 30% of the population does not seem to follow either the science or any reasonable cost-benefit analysis of the policy.
For more details on the mandate for your business, see below.
Healthcare Facilities Rule
The Centers for Medicare and Medicaid Services (CMS) issued a rule which requires all employees of healthcare facilities to receive the vaccine as a condition of the facility receiving funds from Medicare or Medicaid.
The first dose must be administered by December 5, 2021, and the second dose must be administered by January 4, 2022. The rule allows exemptions for medical conditions and religious beliefs.
This rule applies to all facility employees, including practitioners, students, trainees, and volunteers. It also applies to any individuals providing care, treatment or other services at the following facilities: Ambulatory Surgery Centers, Hospices, Psychiatric residential treatment facilities, programs of all-inclusive care for the elderly; hospitals; long-term care facilities; 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 provider of outpatient physical therapy and speech-language pathology services; community mental health centers; home infusion therapy suppliers; rural health clinics/federally qualified health centers; end-stage renal disease facilities.
Individuals providing services 100% remotely will not be subject to the mandate.
Facilities must track and document the vaccine status of each employee, including vaccine exemption requests and outcomes. These records will be kept separate from employee personnel files.
To view a list of frequently asked questions, visit: www.cms.gov/files/document/cms-omnibus-staff-vax-requirements-2021.docx
Cost of the CMS Mandate for Healthcare:
Implementing this rule in the healthcare industry is going to be very expensive and costs will be borne by providers, consumers and taxpayers. CMS estimates it will affect 10.3 million workers and the total cost will be $1.38 billion: $136 million for information collection; $180 million for counseling and incentive costs; $466 million for the cost of vaccinations; and $600 million for disruptions to staffing and services (estimate for cost of hiring new staff to replace those who leave the industry).
OSHA’s Emergency Temporary Standard (ETS) for Employers with 100 or more employees
This mandate applies to all employees with 100 or more employees, including full-time and part-time employees, but not independent contractors.
The mandate does not apply to those who work exclusively outside but does apply if the employee spends anytime indoors – including in a construction trailer or a shared work vehicle.
The mandate does not apply to those who work where no other individuals are present or who work exclusively from home.
The first does must be administered by December 5, 2021, and the second dose must be administered by January 4, 2022.
Employers must provide employees with up to four hours of paid leave to receive the vaccination, as well as “reasonable time and paid sick leave” to recover from the side effects of each dose.
Employers must determine the vaccine status of each employee and keep updated records of their status. Employers must also keep a roster of all employees indicating if they are fully or partially vaccinated, not vaccinated due to medical or religious exemptions, or not vaccinated due to not submitting suitable proof of vaccine.
Violations of the OSHA mandate will be expensive. OSHA can issue fines on employers of $13,653 per violation if classified as “serious,” and up to $136,532 if the violations are willful or repeated.
FAQs and Policy Templates for Businesses can be found here: https://www.osha.gov/coronavirus/ets2
Cost of OSHA Mandate:
OSHA estimates this mandate will cover 84 million workers and 2/3 of the private sector employees. OSHA estimates the cost to implement the mandate will be $2.99 billion, but that seems low, given the number of employees affected. As noted above, the CMS rule for healthcare facilities was expected to cover 10.3 million workers and cost $1.38 billion.
Court Rulings and What to Expect
The OSHA rule took effect immediately on November 4, 2021, but on November 5th the 5th Circuit Court of Appeals issued a stay. It is not completely clear that the stay affects all 12 circuits, but it appears likely. Court challenges are currently pending in the Fifth, Sixth, Seventh, Eighth and Eleventh Circuits, as well as the DC Circuit. Minnesota is in the 8thCircuit.
Because of the many lawsuits in multiple jurisdictions, the cases will be consolidated and transferred to one Circuit, which will be chosen by lottery. This lottery is expected to take place on or about November 16, 2021.
Most companies I have spoken with continue to work to set up the data collection and testing systems so they are ready to begin tracking vaccine status if they are forced to comply with the first deadline of December 5, 2021.
It is already costing businesses, employees and families a great deal of time and stress. I hope the Circuit chosen to oversee the cases acts quickly and that the Supreme Court also takes up any cases appealed to it very expeditiously.
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