First, CMS has issued an interim final rule requiring Medicare and Medicaid certified providers and suppliers to insure that all of their staff are fully vaccinated for COVID-19. This applies to all employees not just direct care workers. The only exceptions are for those employees who request and receive an exemption from the vaccination because of disability, medical condition, or a sincerely held religious belief, practice, or observance, or individuals who provide services 100% remotely such as remote telehealth or payroll services.

Additionally, OSHA has issued Emergency Temporary Standards to protect workers from the coronavirus requiring employers with 100 or more employees, company-wide, to have their employees to be fully vaccinated and insure that each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer).

Employers must base the 100 employee count on their entire business and include part-time employees. Employers do not count independent contractors or agency staff workers. Employees who do not report to a workplace where other individuals are present are not required to get vaccinated. Similarly, employees who work exclusively from home and employees who work exclusively outdoors do not have to be vaccinated.

It is incumbent upon an employer to ascertain the vaccination status of each employee. The employer must keep a roster that lists all employees and clearly indicates for each one whether they are fully vaccinated, partially vaccinated, or not fully vaccinated because of a medical or religious accommodation or not fully vaccinated because they have not provided acceptable proof of their vaccination status. This record is considered to be an employee medical record and must be maintained in a confidential manner. Booster shots and additional doses are not included in the definition of fully vaccination under the ETS. Similarly, those employees that choose not to become vaccinated and have to provide a weekly COVID test, the employer must maintain those records in a similar fashion.

Employers have to provide paid time off for employees to become vaccinated or if they have side effects.

Employers do not have to pay employees who choose not to get vaccinated and have to have a weekly COVID test.

If an employee is entitled to a reasonable accommodation due to disability or sincerely held religious belief that prevents them from being vaccinated, they too must be tested on a weekly basis. However, if testing for COVID-19 conflicts with a worker’s sincerely held religious belief, practice, or observance, the worker may also be entitled to a reasonable accommodation.

In states like Michigan, that has a State Plan they must amend their standards to be identical or at least as effective as the new standards issued by OSHA.

The effective date for the ETS was November 5, 2021, and employers must establish a policy on vaccination and determine the vaccination status of each employee by December 5, 2021. By January 4, 2022, employers must insure all employees who are not fully vaccinated are tested for COVID-19 at least weekly.

If you have any questions, please do not hesitate to contact Karen Berkery at (313) 965-7534 and Terence Durkin at (313) 965-6970.

Any information included here or through our web site is presented solely for general informational purposes and is not in any way intended as legal advice, is not a substitute for getting actual legal advice from an attorney, and should not be acted upon as legal advice without first seeking qualified professional counsel specific to your needs and situation. Additionally, by providing this general information and the information on our web site, no attorney client relationship is created.

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