OSHA and CMS Release Interim Final Rules Addressing COVID-19 Employer Vaccine Mandate

Effective November 5, 2021, the clock begins ticking for certain employers to develop vaccination plans and ensure their workforce is vaccinated. The Occupational Safety and Health Administration (OSHA) and the Centers for Medicare & Medicaid Services (CMS), the “Departments” released separate, but united, Interim Final Rules (IFRs) requiring certain employers to ensure their workforce is fully COVID-19 vaccinated (or if unvaccinated, produce a negative test weekly) by January 4, 2022.

While the two IFRs address different categories of employers, the goal is unified: to ensure America’s workforce is vaccinated against COVID-19. OSHA’s IFR is a lengthy one, nearly 500 pages, outlining the argument for an Emergency Temporary Standard (ETS) (based on the finding that exposure to SARS-CoV-2 in the workplace is a “grave danger” to unvaccinated employees). The ETS is expected to last at least six months, pending pandemic unknowns.

OSHA compiled a FAQ document for employers, complete with a myriad of questions addressing employers’ actions regarding vaccine mandate implementation. CMS created a similar Q & A document directed towards their IFR that certain healthcare facilities’ workers get vaccinated.

Employers and advisers alike will benefit from reading these documents as they create vaccination implementation plans.

  • The Department are working together to require applicable employers to comply by the January 4, 2022 deadline.
  • The Departments clarified that the ETS and CMS IFR pre-empt contrary State laws, citing the Supremacy Clause of the U.S. Constitution.
  • The IFRs are broad in scope, and address, among other issues: how to handle exemption requests; how to address separate classes of employees; guidelines for creating vaccination plans; and other questions relevant to employers with 100+ more full-time employees and healthcare facilities that qualify under CMS’ IFR.

OSHA’s IFR: Employers with 100 or more employees must:

  • create vaccinations policies within 30 days of publishing of the IFR (These plans may be requested by OSHA, and must be produced in a written format within four hours of the request.);
  • ensure workers are fully vaccinated against COVID-19, or produce a verified negative COVID-19 test on at least a weekly basis by January 4, 2022;
  • provide paid time-off for employees to get vaccinated and sick leave to recover from the vaccination (as needed);
  • ensure all unvaccinated workers wear a face mask in the workplace;
  • remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider; and
  • be compliant in providing paid time-off for employees to get vaccinated and masking for unvaccinated workers by December 5th, 2021.


  • Healthcare facilities covered by the CMS IFR must establish a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by December 5, 2021.
  • All eligible staff and workers at health care facilities participating in Medicare or Medicaid must be fully vaccinated by January 4, 2022.
  • CMS will enforce these requirements through survey and enforcement processes.

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