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With guidance changing by the day, earlier recommendations of “be prepared to act” are echoing louder for assisted living providers. Although the Department of Labor’s Occupational Safety and Health Administration vaccinate-or-test mandate was reinstated, another OSHA rule is set to expire today.
American Seniors Housing Association President David Schless told McKnight’s Senior Living that most industry operators have taken steps to fully vaccinate and offer booster shots to residents and employees, despite the uncertainty of the OSHA mandates and the Centers for Medicare & Medicaid vaccination mandate for healthcare settings that serve Medicare and Medicaid populations.
“We know business likes certainty, and with the ongoing start / stop nature of these rules, most are not waiting on government actions to run their business,” Schless said.
An Argentum spokesman told McKnight’s Senior Living that the association remains focused on assisting caregivers in getting residents and staff members vaccinated and boosted and hopes that the federal government “will provide the relief and support required to get the job done.”
“The pandemic continues to increase costs exponentially as our caregivers protect some of the nation’s most vulnerable people — our residents — from the coronavirus and its variants,” the spokesman said.
National hold lifted
On Friday, the 6th Circuit Court of Appeals lifted a hold on OSHA’s COVID-19 vaccinate-or-test mandate for employers with 100 or more workers. Before its decision to lift the stay, the Cincinnati appeals court also denied petitions to have the entire panel of judges participate in a hearing on the OSHA challenges.
Several challenges to the 6th Circuit Court’s decision followed Friday’s ruling, including one from a group of businesses arguing that OSHA exceeded its statutory authority, another from a group of religious nonprofits and businesses arguing that the ETS violates the First Amendment and Religious Freedom Restoration Act, and a third asking the Supreme Court to grant another stay on the standard pending review of the merits of the mandate.
Supreme Court Justice Brett Kavanaugh on Monday asked the Biden administration to respond to the appeals by 4 p.m. on Dec. 30.
OSHA COVID-19 vaccinate-or-test rule
The OSHA COVID-19 vaccinate-or-test rule, announced Nov. 4, calls for U.S. companies employing 100 or more workers to develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. Employers were to ensure that their employees had received their final vaccination doses by Jan. 4, with at least weekly testing required for unvaccinated employees after that.
The 5th Circuit Court originally granted a motion to stay the standard on Nov. 12. Subsequently, OSHA said that it was suspending enforcement of the rule because the court ordered that the agency “take no steps to implement or enforce” the standard “until further court order.”
To account for the “uncertainty” of the situation, OSHA on Saturday pushed back full enforcement of the standard. The agency urged employers to begin working to achieve compliance, indicating that it will not issue citations for noncompliance with any requirements of the standard before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, as long as an employer shows a “good faith effort.”
OSHA healthcare rule
Today, OSHA’s separate COVID healthcare emergency temporary standard, announced in June, was set to expire at midnight, potentially bringing assisted living providers under the agency’s COVID-19 vaccinate-or-test standard. As of McKnight’s Senior Living publication deadline, the status of the healthcare standard remained uncertain.
Settings such as assisted living communities, life plan / continuing care retirement communities and other healthcare settings that were subject to OSHA’s COVID healthcare standard were exempt from the OSHA vaccination-and-testing ETS.
Under the healthcare rule, operators are required to conduct hazard assessments and have written plans to mitigate the spread of the coronavirus. The standard also requires healthcare employers to provide some employees with N95 respirators and other personal protective equipment. Additionally, it includes protocols covering social distancing, employee screening, and cleaning and disinfection.
In November, OSHA indicated that the requirements of the healthcare standard “remain necessary to address the grave danger of COVID-19 in healthcare.” The agency said it would continue to monitor the need for changes in the healthcare rule each month.
With the OSHA COVID-19 vaccinate-or-test standard likely to end up before the Supreme Court, providers are left to sort out what they need to do and when they need to do it.
