HJAR Mar/Apr 2022

HEALTHCARE JOURNAL OF ARKANSAS I  MAR / APR 2022 21 The OSHA Emergency Temporary Standard On Nov. 5, 2021, the Occupational Safety and Health Administration, the federal agency charged with protecting the safety of workers in the workplace, issued an emer- gency temporary standard (ETS) mandat- ing all employers with at least 100 employ- ees to implement a mandatory vaccination policy or, as an alternative, allow unvacci- nated employees to provide proof of weekly negative COVID-19 tests and require those employees to wear face coverings at work. 7 The OSHAETS, unlike the CMS rule, did not distinguish by type of employer — it applied to any employer with 100 or more employ- ees. Even though some particular groups of employees could be exempted from the requirement, if an employer had 100 or more employees, the standard applied. Thus, a number of healthcare providers that were not included in the specific groups covered by the CMS rule were instead cov- ered by the OSHAETS. The OSHA ETS established the same compliance dates for first dose and full vaccination as the dates in the CMS rule. Not surprisingly, the OSHA ETS was also quickly challenged in court. Like CMS, OSHA initially announced that it would not enforce the standard while the lawsuits were being decided. Ultimately, on Jan. 13, 2022, the same day as the CMS rule decision, the Supreme Court decided that the OSHA ETS lacked the statutory support required for such a far-reaching rule with such high financial costs and ordered that the OSHA ETS be stayed. As a result, OSHA withdrew the ETS effective Jan. 26, 2022. 8 OSHAwith- drew the emergency temporary standard and said that it is prioritizing its resources to finalize a permanent COVID-19 healthcare standard. Only time will tell, but the OSHA COVID vaccination standard may yet live to see another day (and, no doubt, another flurry of lawsuits). Federal Employees The mandate for vaccination of federal employees remains in limbo. On Jan. 21, 2022, a Texas federal district court ruled that the President lacks the broad authority to require all federal employees to choose between COVID vaccination and losing their jobs. Although many federal employees had already received vaccinations in response to the September mandate, as federal offices across the country began to move forward with suspensions that could lead to termi- nations for those who refused to be vacci- nated, the Texas judge stayed the implemen- tation of the mandate. That ruling has been appealed by the Department of Justice. CONTENTION-INSPIRED CONFUSION Many states and localities passed ordi- nances or statutes implementing or prohib- iting COVID vaccination mandates in early 2021. For example, inArkansas, Act 977 pro- hibits the state or any political subdivision from coercing or requiring an individual to get a COVID vaccination as a condition of “education, employment, entry, or services from the state or a state agency or entity or for obtaining a licensure, certificate or per- mit from a state agency or entity.”Act 1030 prohibits the state or any state official from requiring an individual to use a “vaccine passport”in this state for any purpose. All of the legislation passed in the spring regard- ing COVID placed limitations only on state or local government entities and agencies. By that time, COVID vaccinations and mask mandates had become dominat- ing political issues. Many who supported former President Trump’s successful ini- tiative to fast-track the development of COVID vaccines became skeptics if not vocal opponents in regard to vaccinations once the Biden administration’s large-scale distribution began. Legislative interest in COVID mandates of various types became more partisan and contentious. As 2021 progressed, it became clear that