By Corinne Sebren
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) and the Centers for Medicare & Medicaid Services (CMS) concurrently published new emergency regulations designed to minimize the risk of COVID-19 transmission in the workplace. Yet, despite indications from Biden Administration officials that tribal employers, including tribal business enterprises, would be expressly included in the final versions of the rules, they were not.
Because earlier vaccine mandates governing federal employees and contractors expressly exempted Tribes and neither the OSHA ETS nor the CMS IFR do, tribal employers covered by these rules should make every effort to comply while staying current with any updates.
A brief summary of each rule and its applicability to tribal employers follows:
OSHA’s rule, issued as an Emergency Temporary Standard (ETS), applies to businesses with 100 or more employees. It requires employees to be either fully vaccinated, or wear face coverings and undergo weekly COVID-19 testing. The OSHA ETS also contains detailed provisions for employee notice, paid leave, acceptable testing, return-to-work criteria, and documentation requirements. Employers are not required to pay for testing under the rule. The OSHA ETS is a law of general applicability and is completely silent as to its application to Tribes. Accordingly, the OSHA ETS almost certainly applies to non-governmental tribal enterprises that employ 100 or more workers.
CMS’s rule, issued as an Interim Final Rule (IFR), applies to all workers at covered Medicare- and Medicaid-regulated facilities. The CMS IFR requires employees to be vaccinated for COVID-19 by January 4, 2022, unless they are deemed exempt for medical or religious reasons. Employees cannot opt for testing in lieu of vaccinations under this rule. The CMS IFR expressly applies to IHS and any provider participating in Medicare or Medicaid programs. Accordingly, the CMS IFR applies to all workers regardless of clinical responsibility or patient contact at Medicare-certified tribal health care facilities that operate under an ISDEAA compact/contract.
Of note, last Friday the Fifth Circuit issued a temporary stay on the OSHA ETS in response to a lawsuit. This lawsuit will move very quickly and if courts rule in favor of OSHA, the original deadlines could remain in place. Therefore, covered tribal employers should consider moving forward as though the rule is currently in effect. CMS’s rule is not part of this lawsuit and is currently in effect.
In sum, the OSHA ETS and CMS IFR both apply to certain tribal employers. Both of these pending rules are open for public comment: OSHA’s comment period ends on December 6, 2021, and the CMS’s comment period ends on January 4, 2022. Galanda Broadman PLLC can assist tribal employers with compliance or drafting public comments. Please contact us if interested.
UPDATE:
CMS Mandate
On December 15, 2021, the 5th Circuit Court of Appeals lifted the nationwide injunction on the CMS mandate. The 5th Circuit did not feel the stay's application to the entire country was appropriate, but it did leave the stay in place for the 14 states that brought the original lawsuit, which is still being litigated. A separate lawsuit in the 8th Circuit (originating in Missouri) is also ongoing and the injunction is still in effect for the 10 states that brought that suit. Finally, an injunction is in place in Texas while litigation is pending.
The 25 states where the CMS mandate is currently on hold due to injunctions and pending litigation are: Texas, Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, Ohio, Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire. For all other states, the CMS mandate is currently in effect.
Although the mandate is back in effect for about half of the country, CMS stated earlier this month that it will not enforce the mandate while injunctions are being litigated. As of the writing of this update, CMS has not walked that statement back, nor has it issued new deadlines for enforcement. Because there are still injunctions in place and litigation is ongoing, no enforcement is imminent. This could change at any time. The litigation over the CMS mandate is expected to reach the U.S. Supreme Court.
With regard to the rule's application in Indian country, CMS issued several clarifications over a series of All Tribes calls and meetings with regional Indian Health Boards. For example, it is now clear that only Medicare-certified entities (those entities with Conditions of Participation or CoPs) are covered, whereas initially it was expected that Medicaid-certified facilities would be covered as well. Moreover, CMS has stated that standalone CLIA-certified labs will not be covered by the rule. Clarifications notwithstanding, the CMS mandate as it applies to tribal health programs remains difficult to interpret. There are significant issues for tribal health programs to consider, such as the rule's application to vendors and tribal government employees who provide program support. Please contact corinne@galandabroadman.com with questions.
OSHA Mandate
On December 17, 2021, the Sixth Circuit Court of Appeals removed the stay of OSHA's Emergency Temporary Standard (ETS). OSHA has since posted new compliance dates in a statement released on its website. Covered employers must now comply with the provisions of the ETS by January 10, 2022. If an employer opts to permit employees to test in lieu of vaccination, then testing of unvaccinated employees must begin on or before February 9, 2022.
Since the Sixth Circuit's ruling, several plaintiffs have already filed emergency applications with the U.S. Supreme Court for a stay of the ETS. The applications are being reviewed by Justice Brett Kavanaugh. Justice Kavanaugh can either issue the stay pending review by the full Court, or he can refer the decision to the full Court for review. It is likely the Court will review these emergency applications quickly to stay ahead of the new January 10, 2022, compliance date.
Finally, with respect to application of the ETS in Indian country, though OSHA indicated back in November that it would consider suspending enforcement of the rule pending tribal consultation, the agency did not issue anything in writing to that effect. It is likely that OSHA did not see the need to suspend enforcement for the Tribes once the Fifth Circuit injunction, which suspended enforcement of the rule nationally, went into place. OSHA's December 17 statement issuing the new compliance and enforcement dates did not address tribal consultation or indicate that tribal enterprises would be exempt. Unless new guidance is released suggesting otherwise, the ETS is currently in effect and non-governmental tribal enterprises that employ 100 or more workers should assume they are expected to comply.
Corinne Sebren is an Associate Attorney at Galanda Broadman, PLLC, an Indigenous rights law firm. Her practice focuses on Indigenous health law, litigation involving tribal governments and enterprises, and civil rights. Many thanks to Emmerson Donnell for editing this post.
