Vaccine and Testing Directives: What’s Next After the SCOTUS Rulings?
While many employers are breathing a sigh of relief now that the U.S. Supreme Court has blocked OSHA’s vaccinate-or-test mandate, the difficult and daily challenge of managing COVID-19 risks in the workplace doesn’t go away.
COVID-related absenteeism is on the rise, return-to-work plans are on hold, and spot outbreaks continue to cause short-term worksite closures and disruption.
From a regulatory perspective, employers with 100+ employees, by and large, have a reprieve from the OSHA ETS, but companies still face a complex web of COVID-19 health and safety rules at the state, local, and industry level.
As one example, vaccine mandates in health settings are likely to stay in place. On the same day as its OSHA ruling, the Court affirmed a federal rule requiring COVID-19 vaccination for health care workers at Medicare- and Medicaid-certified providers and suppliers.
As for other key sectors of the economy, here’s our view of recent developments and the near-term impacts for employers and workers:
Large National Employers
We work with and talk to leading national employers across all industries daily in our Healthy Returns practice, assisting them with their COVID-19 testing and vaccination protocols. Our sense is that most large organizations that were not inclined to mandate vaccination or test employees before the ETS will revert back to their prior policies.
There are large businesses, albeit in the minority, still moving forward with vaccine verification and employee testing programs. While the OSHA ETS may have been the catalyst for these companies, the Omicron surge has confirmed for many employers that unvaccinated and untested workers pose a threat to their bottom-line.
Relieved of the burden of testing all unvaccinated employees, some employers are narrowing their focus to testing programs that would protect mission-critical operations, or select categories of workers, such as those who travel or interact closely with the public.
SCOTUS affirmation of the CMS rule means vaccine mandates will remain in force for most healthcare organizations. This puts some employers in the difficult position of enforcement in the face of severe labor shortages like those in the Skilled Nursing industry.
Deadlines for compliance with the CMS healthcare directive have been extended. Unvaccinated workers have until Jan. 27 to receive a first dose and until Feb 26. to be fully vaccinated. CMS will also require organizations to track vaccine status and exemptions.
K-12 and Higher Ed
Schools and colleges will continue to operate under a patchwork of COVID-19 mitigation policies driven by factors that range from state and local politics to the availability of COVID-19 federal funding and testing supplies.
To keep kids in classrooms, many schools returned in the fall with testing programs in place fully funded for the school year. But those programs are threatened by the ongoing shortage of Rapid Antigen testing kits. The announcement by the administration that it plans to purchase and distribute 1 Billion At Home testing kits free to consumers will strain manufacturing capacity and may limit available supply for schools and other organizational buyers with ongoing testing programs.
The COVID-19 health and safety requirements for federal employees have received less press than the proposed OSHA standards, but still impact millions of workers. In a new development, the administration said federal agencies should require weekly COVID-19 testing by February 15 for unvaccinated employees who work on-site or interact with the public. It added that workers who refuse to be tested could be disciplined by federal agencies.
As noted above, the stance of employers toward vaccine and testing mandates will continue to vary greatly and be driven more by state and local standards as well as the risk profile of individual companies and their industries.
For employers moving forward with or interested in implementing OSHA-like COVID-19 safety programs, there are still affordable, scalable options for vaccine status management and testing. Our Healthy Returns experts can help companies customize these programs to their unique needs.
Lastly, businesses should note that OSHA may continue to pursue other regulatory and enforcement avenues outside of the ETS. In response to the Supreme Court decisions, Secretary of Labor Marty Walsh vowed that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and general duty clause."