Late last week, the Sixth Circuit Court of Appeals reinstated the OSHA Emergency Temporary Standard (ETS) mandating employees to be vaccinated or tested weekly. Immediately after the Sixth Circuit ruled on Friday, several of the many plaintiffs who had challenged OSHA’s ETS asked the Supreme Court to intervene as part of its “emergency” docket. Appeals from the Sixth Circuit are assigned for review by Justice Brett Kavanaugh, who under Supreme Court rules could in theory make a decision on his own but is more likely to refer the matter to the full Supreme Court. With the Labor Department now delaying full enforcement of its rule until Feb. 9, the justices have several weeks to ask for abbreviated briefings if they want them.
The Emergency Temporary Standard (ETS) developed by the Occupational Safety and Health Administration (OSHA) will require all covered employers with 100 or more employees to either mandate their workforce receive the vaccination against COVID-19 or test them weekly to ensure they are not infected.
What Employer’s Need to Know:
- The initial compliance date has been moved to January 10, 2022. This applies to employers with 100 or more employees. Weekly testing of unvaccinated employees is now extended to February 9th. OSHA announced that it will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9th.
- Employers must gather vaccine status information about their workforce and develop the required vaccination roster for employees, noting whether or not they are fully vaccinated as defined under the ETS.
- Develop the required mandatory vaccine and/or testing/masking policies required under the ETS. While employers don’t necessarily need to implement these policies before January 10, they should be ready to implement them as soon as possible and be prepared to demonstrate good faith efforts to put them into place.
- Additionally, employers need to be prepared to have unvaccinated employees demonstrate proof of a negative test as of February 9. Self-funded employers should be thinking about the potential of weekly testing and the impact on the self-funded plan. The vaccine mandate does not require employers to pay for the testing either inside or outside of the health plan. However, in this tough job market, many employers are anticipating paying for the testing under the mandate.
Mandated testing and the health plan:
As a fiduciary of a self-funded plan, it is the plan sponsor’s responsibility to follow the terms of the plan document. All plans have an exclusion for employer mandated work-based exams or tests via the medical necessity exclusion. Diversified recommends that should this mandate stand, employers consider the following:
- If inclined to pay for the test, do so outside the health plan. Tests done to satisfy the mandate will not track to the member’s stop loss deductible and non-medically necessary testing could be a violation of ERISA’s fiduciary responsibility;
- Whether paying or not paying for the test outside of the plan, to ensure that claims do not get sent to the health plan, if possible, arrange to have testing done at your location with a company that performs COVID-19 testing onsite. This will also make tracking and access easier for you and your employees. Most major pharmacies or labs offer these services, similar to a flu vaccine clinic (some examples are CVS, “Ready Return,” Quest Diagnostics Worksite Testing, Walgreens Test and Protect, and DocGo);
- If the employer is not planning to pay for testing, clearly inform employees that test claims should not be sent to the health plan and that the employee must indicate that they do not have insurance when registering for the test. Educate them that when registering, there is no option (as of today) to select testing for work-based reasons. The only testing options are for contact and exposure; therefore, they must indicate that they do not have insurance coverage for the test when registering for work-based testing at a location outside of your facility;
- If you still want the mandated testing claims paid through the health plan, we will need an email or letter from an authorized person at your company instructing us to pay the claims without question.