Federal and Florida Vaccine Mandates, What Do You Need to Do Today?

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With all the news headlines about vaccine mandates, requirements, and stays it is easy to get confused.  Below is a summary and timeline over the last month regarding vaccine rules and what it means for private employers:

  • On November 5 the Centers for Medicaid and Medicare Services (“CMS”) and OSHA issued 2 separate rules requiring that Medicare and Medicaid certified providers and suppliers to implement a workplace vaccine mandate if they want to remain in the Medicare/Medicaid programs (CMS), and employers over 100 employees require vaccines with certain exemptions (OSHA ETS). Employers had a December 6, 2021 deadline for implementing these rules and having employees receive their first vaccine dose.

  • On November 11, 10 states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming) filed a complaint in a Missouri federal court challenging the enforceability of the CMS rule. On November 29 that court granted the states’ request to block the rule – but that order only applies to healthcare facilities in those 10 states.

  • Separately, another 14 states (Arizona, Alabama, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia) filed a similar lawsuit against the CMS rule in Louisiana. On November 30, 2021 that court blocked the CMS rule for all healthcare employers across the country not included in the Missouri court’s decision.

  • On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard.

  • On November 18, the Florida legislature passed a law that private employers who require COVID-19 vaccines must provide 5 exemptions (medical, religious, prior COVID-19 positive person, PPE, and regular testing). The federal laws, if upheld would pre-empt this law.

  • On November 17 OSHA released a statement that it had suspended it’s activities related to the implementation and enforcement of the ETS.

What does this mean for employers?

  • If you are a private employer with over 100 employees you do not have to comply with the OSHA ETS at this time. You should continue to prepare for a possible resurrected vaccine mandate without rolling out major initiatives

  • If you are a health care employer you do not have to comply with the CMS rule at this time. You should continue to prepare for a possible resurrected vaccine mandate without rolling out major initiatives

  • Florida employers must comply with the Florida law on vaccines and permissible exemptions regardless of size.

  • If you have employees in states outside of Florida it is critical that you follow state specific legislation. You may operate in a state or local jurisdiction that already has a vaccine mandate in place which would not have been affected by the recent federal decisions.

  • Note that nothing in this article addresses the Federal Contractor requirements.

Challenges against the OSHA and CMS rules are still ongoing in multiple states across the country.  Similarly, there is pending legislation in various states across the country.  These stays could be overturned or superseded by state law. So, it’s best to think of this as a temporary reprieve from the December 6 vaccination deadline rather than a total opt out.

 If you have any questions on how these laws affect you or your business please don’t hesitate to reach out: info@barbascremer.com. We are here to help you address the day to day questions of balancing business concerns, the law, and health and safety.