Medicare Compliance & Reimbursement

Caution: Other OSHA regulations are still in effect.

While the U.S. Supreme Court opted to allow the CMS rule to move forward, it decided to stay the Occupational Health and Safety Administration (OSHA) Emergency Temporary Standard (ETS) rule impacting employers with 100 or more employees.

Reminder: The OSHA ETS on vaccination mandates in the workplace was released last November in tandem with CMS’ rule and met with a plethora of legal challenges as well (see Medicare Compliance & Reimbursement, Vol. 48, No. 1).

Update: On Jan. 13, in a 6-3 decision, the Court admitted that COVID-19 is problematic, but that it wasn’t necessarily a “work-related danger” for every kind of worker. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the ruling notes.

The Court compared COVID–19 to other “universal risks” that people face everyday, and thus, cannot be governed. “Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization,” observes the Court.

Heads up: “Employers with 100 or more employees who would have been covered by the OSHA vaccine-or-test ETS need not comply with that rule at this time and the future ‘successful’ prospects of that rule seem highly unlikely,” say attorneys Jessica Biondo, Jon Bumgarner, Drew Howk, Jon Rabin, Robin Sheridan, and Dana Stutzman with Hall Render in online analysis.

Caution: Last June, OSHA issued an ETS update covering training, hazard controls and assessments, and compliance reporting related to mitigating COVID-19 in the workplace. But, in a Dec. 27, 2021 announcement, OSHA withdrew “the non-recordkeeping portions of the healthcare ETS,” the release maintained. “Employers … must continue to follow the recordkeeping and reporting obligations under that rule and should highly consider continuing to follow the related PPE and Respiratory Protection Standards as advised by OSHA,” the Hall Render lawyers maintain.

Review the decision at www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf and read the OSHA release on the original healthcare ETS at www.osha.gov/coronavirus/ets.