COVID-19 Daily Update - November 4, 2021 (SPECIAL UPDATE)

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November 4, 2021



November 4, 2021




As expected, both the Occupational Health and Safety Administration (OSHA) and Centers for Medicare and Medicaid Services (CMS) released regulations today relating to COVID-19 vaccinations and testing for workplaces, as announced in September 2021, in the White House’s action plan to address ongoing pandemic.  Here are the posted rules and news releases:


OSHA Interim Rule

CMS Interim Rule


OSHA News Release

CMS News Release


Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies


Following the federal agency announcements, Governor Ducey released a statement indicating that his administration will challenge the new regulations.  As of this writing, there are no additional details available.  Likewise, Arizona Attorney General Mark Brnovich also issued a statement challenging the federal government’s guidelines.   Accordingly, it is uncertain whether the legal challenges from Arizona, and other similarly situated states, will create delays in implementation.


Additional technical guidance is expected from both OSHA and CMS to assist employers in implementation of the new guidelines.


Below is a summary of both the OSHA and CMS guidelines that we hope you will find beneficial:


OSHA issued an Emergency Temporary Standard (ETS) as an interim final rule. It updates an ETS previously issued in June 2021 that originally only applied to healthcare workers. An ETS is only effective for 6 months, at which point a permanent standard is required, and does not require a notice-and-comment period.  

  • The ETS is expected to apply to more than 80 million workers in the private sector. 
  • OSHA's rule will not apply to entities covered by the CMS rule or by the federal contractor rule. 
  • The ETS mandates that employers with 100+ employees to require employees to either commit to weekly testing or furnish proof of having received a COVID-19 vaccine that has been approved or authorized for emergency use by the FDA. OSHA will assess capacity of employers with fewer than 100 employees to comply with requirements.  
  • OSHA is requiring that covered employers have a written vaccine policy consistent with the ETS, know the vaccination status of each of their employees on an ongoing basis.
  • Acceptable proof includes a record of immunization from a health care provider or pharmacy, the Centers for Disease Control and Prevention's COVID-19 card, or other official documentation.  
  • The standard takes effect January 4, 2022, at which point employees will either have to furnish evidence of full vaccination or produce a negative COVID-19 test on a weekly basis and wear face coverings. Individuals who test positive must be removed from the workplace and can return after following CDC Isolation Guidance. 
  • OSHA is considering noncompliance with this policy an "egregious violation," under which it can issue a separate penalty for each instance of noncompliance. OSHA can cite for each instance of noncompliance using a range of enforcement tools available to the agency as appropriate and legally permissible.  
  • OSHA continues to seek comment on smaller employers, policies for employees who have COVID-19 antibodies from prior infection and other possible protective policies.  

The CMS interim final rule (IFR) applies to certain facilities that receive payment under Medicare and/or Medicaid, which includes the vast majority of health care providers nationwide.  

  • Under the CMS rule, covered facilities must ensure that all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by December 5, 2021.  All eligible staff must have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by January 4, 2022.
  • Eligible staff includes: facility employees; licensed practitioners; students, trainees, and volunteers; and individuals who provide care, treatment, or other services for the facility and/or its patients, under contract or other arrangement.
  • Facilities covered by the regulation include:
    • Ambulatory Surgical Centers, Hospices, Programs of All-Inclusive Care for the Elderly (PACE), Hospitals, Long Term Care Facilities, Psychiatric Residential Treatment 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 providers of outpatient physical therapy and speech-language pathology services), Community Mental Health Centers, Home Infusion Therapy Suppliers, Rural Health Clinics/Federally Qualified Health Centers, and End-Stage Renal Disease Facilities
    • Note: the CMS rule does not directly apply to other health care entities, such as physician offices, that are not regulated by CMS
  • Exemptions: The rule provides for exemptions based on recognized medical conditions or religious beliefs, observances, or practices. Facilities must develop a similar process or policy for permitting exemptions that aligns with federal law.
  • CMS will ensure compliance through established survey and enforcement processes.  If a provider or supplier does not meet the requirements, it will first be cited as being non-compliant and will have an opportunity to comply before CMS takes additional action.
  • The rule will be implemented in two phases.  In Phase 1 (within 30 days after rule publication), eligible staff must have received their first dose or a documented exemption.  In Phase 2, (within 60 days of rule publication), eligible employees must have received their second dose.