Editor’s note: NACDS president and chief executive officer Steven Anderson issued the following update to NACDS members on the Biden Administration’s vaccination and testing requirements:

Yesterday, the Department of Labor issued an announcement pushing the comment deadline for the

Steven Anderson

Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) on COVID-19 testing/vaccine requirements, which applies to employers with 100 or more employees, by 45 days out to January 19, 2022. NACDS still plans to submit a comment letter for consideration by mid-December, despite this news. With this change in deadline, the Department did not reference the current judicial order preventing OSHA from implementing or enforcing the ETS until further judicial action. As a result, the Department did not inform the public of what, if any, changes OSHA may make to the implementation dates for the ETS, including the initial implementation date next week – Monday, December 6th. However, as long as the ETS remains stayed by the federal courts, the obligations imposed on employers as of December 6th and the later January 4th, 2022 date are not effective.

For that reason, OSHA has gone before the U.S. Court of Appeals for the Sixth Circuit, which has consolidated before it all the legal challenges to OSHA’s ETS, asking the court to move quickly to dissolve the stay to allow for implementation of the ETS. However, briefing is currently scheduled to go through the end of next week, December 10th, meaning a ruling would not come until after the December 6th implementation date. Unfortunately, these circumstances create uncertainty for employers who are moving toward compliance, as explained below.

One scenario is that the implementation dates will not get changed. As long as the stay is in place, those dates will not be effective. But if it is lifted, that means the ETS will be effective immediately, even if it is after the December 6th or January 4th dates. Another scenario is that OSHA will move the dates of implementation due to the extended judicial stay, but OSHA is not required to do so and has not offered any suggestion as to what any possible extended dates may be.

For these reasons, businesses may choose to continue to plan for the December 6th and January 4th, 2022 implementation dates accordingly unless and until OSHA moves the implementation dates, or the courts strike down the ETS. 

Additionally, in the last 24 hours, there were two significant negative rulings against the Centers for Medicare & Medicaid Services’ (CMS’) vaccine mandate, which applies to certain CMS-regulated health care entities. First, the U.S. District Court for the Eastern District of Missouri granted a preliminary injunction preventing CMS from enforcing its vaccine mandate rule in 10 states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming), pending a full judicial review of the mandate’s legality. In practical terms, this preliminary injunction means that health care entities subject to the mandate in the states listed above may not need to adhere to these requirements. The court found that CMS had acted without authority, especially by bypassing the usual note and comment period for administrative rules. This injunction on the CMS mandate only applies to the CMS-regulated health care entities in the 10 states that filed the lawsuit.

However, in a second ruling, a federal judge in the Western District of Louisiana issued a preliminary injunction enjoining implementation of the CMS vaccination mandate regulation nationwide. These rulings likely have implications for NACDS members providing contracted pharmacy services to those regulated health care entities who otherwise would have been subject to the CMS vaccine mandate. Assuming these two cases are appealed, they will go before the U.S. Court of Appeals for the Fifth Circuit, which already issued an order to stay the OSHA ETS.

In further related developments, a federal judge in the Eastern District of Kentucky issued an Order to Stay the federal contractor vaccine mandate, applicable to contractors and subcontractors in Kentucky, Ohio, and Tennessee. We will continue to monitor these legal developments as they evolve.