Federal OSHA’s COVID-19 Emergency Temporary Standard for Healthcare 1910.502 (ETS1):
Federal OSHA has not yet rescinded its COVID-19 Emergency Temporary Standard for Healthcare 1910.502 (ETS1) and is using its enforcement discretion to not issue citations of ETS1 until they are officially rescinded. MIOSHA has been informed that OSHA is in the process of rescinding the relevant rules and the agency is preparing updated rules to align with the revised federal rules. Until updates to the rules are made at the federal and state levels, MIOSHA will not issue citations related to Part 505 - Coronavirus Disease.
Federal OSHA's COVID-19 Emergency Temporary Standard for Vaccination and Testing 1910.501 (ETS2):
On January 26, 2022, federal OSHA withdrew its COVID-19 Emergency Temporary Standard for Vaccination and Testing 1910.501 (ETS2). As a result, MIOSHA has not proceeded with the adoption of ETS2. As a reminder, employers are still subject to MIOSHA’s General Duty Clause and are expected to make reasonable efforts to protect their employees from pandemic hazards measured against Centers for Disease Control and Prevention (CDC) guidelines.
1/25/22: CMS Vaccine Mandate Update
The U.S. Supreme Court has upheld the CMS vaccination mandate for certain Medicare and Medicaid-Certified Provider and Supplier Types. MDHHS issued L 21-84 regarding the CMS vaccination mandate is consistent with CMS guidance on this topic, published in FAQ form.
Download the FAQ document from CMS regarding its vaccination mandate for healthcare staff. The following statements are provided on page 3 of this document.
- “This regulation only applies to Medicare and Medicaid-certified facilities. CMS does not have regulatory authority over care settings such as Assisted Living Facilities or Group Homes."
- “ … this regulation only applies to those Medicare and Medicaid-certified provider and supplier types that are subject to CMS health and safety regulations. CMS’s health and safety regulations do not cover providers of Home and Community-based Services.”
Based upon the provisions of the CMS Health Care Staff Vaccination Interim Final Rule and the FAQ document, affirmed by MDHHS L 21-84, the CMS vaccination mandate does not apply to residential or vocational settings which receive Medicaid funding through a Home and Community-Based Services Waiver. The CMS vaccination mandate also does not apply to licensed adult foster care facilities or licensed homes for the aged which do not receive Medicaid funding.
If your organization contracts with a provider or supplier which is subject to the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule, legal consultation should be obtained regarding whether the CMS vaccination mandate applies to your organization.
12/3/21: CMS Vaccine Mandate Faces Preliminary Injunction
A federal district court in Louisiana has issued a nationwide preliminary injunction against the Centers for Medicare and Medicaid Services’ new rule establishing mandatory COVID-19 compliance for healthcare workers and facilities. This injunction joins a prior federal court issued injunction, impacting 10 states. Both courts found the plaintiffs are likely to succeed due to what is considered by some to be CMS’s broad overreach and inappropriate rulemaking procedures.
Earlier this week, the U.S. District Court for the Western District of Louisiana granted a nationwide preliminary injunction, immediately halting the Centers for Medicare and Medicaid Services’ (CMS) federal mandate requiring employees, volunteers, and third-party contractors working at healthcare facilities to be vaccinated against COVID-19. This decision followed another injunction issued a day earlier, by the U.S. District Court for the Eastern District of Missouri, which had blocked enforcement of this same mandate in Arkansas, Alaska, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.
Although these are only preliminary injunctions, they serve as an indication that if the vaccine mandate is fully tried on the merits, the federal government may lose.
As a reminder, the FAQ document that accompanied the rule's issuance states that the regulation only applies to Medicare and Medicaid-certified facilities. CMS further indicates that it does not have any regulatory authority over care settings such as Assisted Living Facilities or Group Homes. In addition, the FAQ document states that CMS’s health and safety regulations do not cover providers of Home and Community-Based Services. Click to view the FAQ document.
11/11/21 Navigating the COVID Vaccination Regulations
NEW OSHA ETS: As reported last week, the Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The rule covers all employers with a total of 100 or more employees, with a few exceptions described in the links below. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.
Click to view a fact sheet highlighting some of the ETS requirements.
Click to view the OSHA Summary of the standard.
Click to view a detailed FAQ page on the ETS requirements.
Click to view the full text of the standard.
OSHA HEALTHCARE ETS: OSHA states that this new ETS does not apply to settings providing healthcare services or healthcare support services subject to the previously issued COVID-19 Healthcare ETS. MIOSHA adopted the OSHA Healthcare ETS and applies this ETS to licensed adult foster care and licensed home for the aged settings.
However, please note that an employer who must comply with OSHA’s Healthcare ETS is not automatically exempted from compliance with OSHA’s COVID-19 Vaccination and Testing ETS. The COVID-19 Healthcare ETS is “settings” based and therefore an employer may have a portion of its employees covered by the COVID-19 Healthcare ETS and the remainder covered by the COVID-19 Vaccination and Testing ETS.
Click to view OSHA's Healthcare ETS.
Click to view the accompanying News Release, which summarizes the ETS.
Click to view the FAQ.
CMS RULE: Also last week, the Centers for Medicare & Medicaid Services (CMS) issued regulations related to vaccine mandates for employees: the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule, which requires COVID-19 vaccination of eligible staff at health care facilities that participate in the Medicare and Medicaid programs.
Click to view the full text of the CMS final interim rule.
Click to view the CMS news release.
Click to view the FAQ document for the new CMS regulation.
Please note that the FAQ document states that the regulation only applies to Medicare and Medicaid-certified facilities. CMS further indicates that it does not have any regulatory authority over care settings such as Assisted Living Facilities or Group Homes. In addition, the FAQ document states that CMS’s health and safety regulations do not cover providers of Home and Community-Based Services. It therefore appears that this regulation does not apply to Medicaid funded Home and Community-Based (HCBS) Services which are provided in residential and vocational settings. Michigan’s Medicaid funded HCBS Waivers include services provided through the community mental health system and the MI-Choice Waiver.