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On November 4, the Biden administration issued two highly anticipated and controversial rules requiring vaccinations for large employers and health care workers. The Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), which covers 84 million employees, requires employers with 100 or more employees to ensure each of their workers is fully vaccinated or tests for COVID-19 at least once a week. An interim final rule (IFR) with comment period from the Centers for Medicare & Medicaid Services (CMS) requires that health care workers at facilities participating in Medicare and Medicaid are fully vaccinated, with no testing option. The health worker rule covers more than 17 million workers at approximately 76,000 health care facilities around the country. Employees falling under the OSHA ETS, CMS IFR, or the previously issued federal contractor rules will need to have their final vaccination dose by January 4, 2022. The new effective date for federal contractors is four weeks later than the original December 8 deadline.

Upon release of the rules, President Biden issued a statement touting the mandates as critical to defeating the COVID-19 pandemic and noted that other requirements issued in July helped reduce the number of unvaccinated Americans over the age of 12 from approximately 100 million to about 60 million: “The virus will not go away by itself, or because we wish it away: we have to act. Vaccination is the single best pathway out of this pandemic.” He also said vaccination requirements are good for the economy, adding that “they help send people back to work – as many as five million American workers. They make our economy more resilient in the face of COVID and keep our businesses open.”

Labor Secretary Marty Walsh and CMS Administrator Chiquita Brooks-LaSure also applauded the actions at their agencies. Walsh said that “COVID-19 has had a devastating impact on workers… we must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19.” Brooks-LaSure said that “today’s action addresses the risk of unvaccinated health care staff to patient safety and provides stability and uniformity across the nation’s health care system to strengthen the health of people and the providers who care for them.” The mandates are already facing pushback from Republicans on the federal and local levels. Energy and Commerce Committee Ranking Member Cathy McMorris Rodgers (R-WA) and Health Subcommittee Ranking Member Brett Guthrie (R-KY) released a statement condemning the CMS rule and said they would make already stark workforce shortages even worse, adding that health care workers “deserve our gratitude—not mandates that force them to make a choice to comply with the federal government or lose their livelihoods altogether.” Republican Governors Ron DeSantis (FL) and Brad Little (IA) announced their intent to sue over the mandates. The rules are long and complex and this summary should not be viewed as a substitute for working with your compliance consultants.

For more information: White House Fact sheet; OSHA ETS; OSHA news release; OSHA ETS resources (fact sheet, summary, FAQs, etc.); CMS IFR with comment period; CMS news release; CMS FAQs.

Additional information is available in the attached Tax Alert.

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Biden administration vaccination policies