Federal Vaccine Mandates
Health Law Talk Presented by Chehardy Sherman Williams
+ Full Transcript
Welcome to Health Law Talk, presented by Chehardy, Sherman Williams health law. Broken down through expert discussion, real client issues and real life experiences, breaking barriers to understanding complex healthcare issues is our job.
Conrad Meyer (00:20):
All right, welcome again, everyone to another edition, Chehardy Sherman Williams Health law.
Rory Bellina (00:25):
Talk morning, everyone.
Chris Martin (00:26):
Conrad Meyer (00:26):
Well, really good afternoon, really. I mean, I think we’re in the afternoon, but I don’t know, whenever you’re listening to this, it’s happy, We’re happy to hear from you. And, and again in the studio today, Conrad Meyer, Rory Bellina, and Chris Martin on another edition, I guess another topic that I’ve seen, it seems to continue to continue to wrap its arms around us covid vaccine mandates and the various I guess regulatory guidance that we’re getting you know, with the vaccine mandates, along with updates, cuz it’s, it’s a fast moving target. So, So Chris, I know that you have, you know, before the show started, you were talking about the latest CMS updates on some of the cases. So take it away. What, what’s going on?
Chris Martin (01:07):
Sure. so remember we have three vaccine rules or mandates. We have the OSHA mandate, we have the CMS mandate, and we have the federal worker, federal contractor mandate. Federal judges and law clerks have been busy the last two weeks with respect to the cms rule, which applies to healthcare workers. initially the federal court in Florida refused to halt the implementation of the vaccine. That was on November the 20th. So people were thinking, Well, maybe we are gonna have to comply with this after all.
Conrad Meyer (01:47):
Chris Martin (01:48):
but then a Eastern District Court in Missouri granted a preliminary injunction. And then just this week, I think it was Monday or Tuesday, the federal judge in Monroe, Louisiana enjoined the implementation or halted the implementation of the CMS vaccine nationwide.
Conrad Meyer (02:09):
So, so far, our listeners, because I mean, there’s, there’s so many different mandates out right now. what, what, when we’re talking about the CMS mandate, who does that effect?
Chris Martin (02:18):
So that’s anybody that does business or has a, has is a participation agreement with cms. So hospitals, ambulatory surgery centers, any type of of entity like
Conrad Meyer (02:31):
That. So it’s not just providers though, it’s also contractors and things like that. Is that correct?
Chris Martin (02:37):
Well, the CMS one is a condition, condition of participation.
Conrad Meyer (02:40):
Got it. Okay. Okay.
Chris Martin (02:42):
And, and it’s halted right now.
Rory Bellina (02:44):
And also the OSHA one has been halted as well. Oh, yeah. And there’s been guidance that’s come out from OSHA since our last podcast, I believe, where OSHA, them said themselves, said that they weren’t gonna force any implementation of it pending pending these cases. Is that correct?
Chris Martin (03:01):
Conrad Meyer (03:01):
But that still hasn’t stopped employers with the OSHA mandate from moving forward. I mean, I think the, you know, from what we’re seeing across the country, we’re seeing employers just, you know, moving forward regardless of the fact that the OSHA mandate has been stayed. Correct. So, so we have two a stay in the OSHA level on that mandate. Now we have a stay on the CMS mandate. What’s left?
Rory Bellina (03:23):
Well, today’s topic, topic number three or in the, the third part in the series, which is the, the federal contractor vaccine mandate, which as of today’s date, I believe just two days ago, Right, Chris, it’s been, this one has been stayed as well in some states
Chris Martin (03:37):
It has. And the federal judge in Kentucky stayed, stayed the the mandate. and it applies to Kentucky, Ohio, and Tennessee.
Rory Bellina (03:49):
So for Louisiana, not yet. We expect it to probably come here, but I think it, I think it’s a good time to, to jump into this one. You know, we started with osha, then we went to cms, now we’re onto federal contractors. So, Well,
Conrad Meyer (04:01):
I wanna, let’s just understand something though, because when, for example, you see on the news, like what Chris was just saying, in Missouri, right, where the federal mandate has been stayed, that federal court that has stayed the order, it only applies, the stay only applies in that district or that Court of Appeal district where that, that Missouri Federal Court lies. Is that, is that correct? Or or does it apply nationwide?
Chris Martin (04:27):
Well, it depends. the Missouri case, it, it was brought on behalf of like 10 or 12 states. Okay. So it, and it was, it was interesting cuz it was the, the argument there was, it was mostly rural states. Mm-hmm. Like Wyoming, South Dakota, North Dakota. And the argument was we’re we’re in a rural area, we already have enough to trouble hiring healthcare workers. Right. If we have this mandatory vaccine, we’re gonna have a critical shortage of healthcare workers. Is that what you really want? You know, And, and so it, that was one of the arguments that was compelling for the judge in
Conrad Meyer (05:06):
Missouri. So the stay though applies to those 12 states
Chris Martin (05:09):
And then the, and then in Louisiana, the Right, the federal judge in Monroe had the discretion to just limit it to Louisiana, but he, he ordered it to be nationwide.
Conrad Meyer (05:21):
So it’s nationwide right now.
Chris Martin (05:23):
Conrad Meyer (05:23):
Wow. Okay. Interesting. Very interesting. And, and, and we, and these have not gone up, this is all at the district court level at this point, right?
Chris Martin (05:32):
The Sixth Circuit court of appeals is gonna be busy Federal sixth Circuit in Ohio.
Conrad Meyer (05:38):
Why is that? Because
Chris Martin (05:39):
That’s where I think the CMS vaccine is gonna get appealed to that case and also the OSHA case
Conrad Meyer (05:46):
To the sixth Circuit. Yeah. Now that, for the, for our listeners who didn’t hear before, was that the random allotment for both cases?
Chris Martin (05:54):
Yeah, I know it was the random allotment for osha. I’m not sure. I think cms, it’s just because similar facts, similar case.
Well, it, Missouri is in the sixth
Conrad Meyer (06:05):
District. I see, I see.
Chris Martin (06:06):
Rory Bellina (06:07):
And coincidentally the sixth circuit, we were talking a little bit off the air, but the sixth circuit’s the one that’s also hearing the multi-district litigation for the opioid cases. So, Oh, it’s a, it’s a very busy circuit right now.
Conrad Meyer (06:19):
I can imagine. I mean, I, you don’t know, I mean I, you would imagine that they would maybe consider this an unbound type of hearing where every single appellate judge is gonna sit and make a decision on this because of the importance of this of this challenge, if you will, you know mm-hmm. versus just having a three panel a three panel judge. you know, I don’t know, we don’t know where it’s gonna go, but just cur just curious where this very interesting situation from a procedural standpoint obviously a heavily watched mandate and a challenge from just a substantive standpoint. But that’s still not stopping employers or, or, or, you know, or contractors I’m assuming. I think people are just moving forward
Rory Bellina (07:00):
Regardless. And I think there’s a lot of confusion right now. You know, people hear in the news about these, these mandates and then they hear that it’s being challenged in different states. And I mean, it, it’s confusing to a layperson. I know. I get the question a lot. What does it mean for Louisiana? What does it mean for the state that I’m in? I think it’s really confusing cuz you’re hearing Fifth Circuit, sixth Circuit, different areas, different states, and people just aren’t sure what to do. And, and I think employers are, are concerned as well because, you know, they’re being told they have to follow these procedures and these mandates and they want to be prepared if and when a court, you know, reverses a lot of these. So I think, I think there’s just a lot of confusion going on and I think a lot of it, you know different media outlets will, will kind of persuade things different ways.
You know, some media outlets will say, No, go ahead and get your policies in place. And then some will say the opposite of no get let it get through the court. So it, it is con it’s very confusing to the consumer. I had a conversation yesterday with someone and I had to break down and, you know, show them that there’s, there’s three of these, so you could fall into one, two, or three. And this one’s been stated, and this one’s been stated, this one hasn’t been stated, but it will be stated. I mean, it, it it’s very, it’s very confusing right now,
Conrad Meyer (08:09):
But do we really trust our media outlets to give us accurate information? I mean, do, I mean, does anyone really think that we’re gonna get some, some sort of validation of accuracy based on, you know, past tendencies? Who knows? I don’t know. But ,
Rory Bellina (08:25):
Fair point, fair point. That’s a fair point. Ll be off the air conversation. Maybe . But, but I think it’s important to, you know, round out this series over the, over the, the three vaccination mandates. Sure. You know, what does this one cover? We, we, we, our goal when we started this series was let’s do it. And what we think is the order of priority, we thought OSHA would probably affect the most people and then CMS and now these federal contractors, which is still a big, big chunk of the United States population. It is. But I know you and I were talking and con and I gave you the we were talking about the definition kind of, of what’s a covered contractor. I thought it was really interesting how they defined it cuz it, it, it, even in their own definition, it’s kind of unclear right, how far it could go. I mean, can you, can you elaborate on that? Sure.
Conrad Meyer (09:10):
So, so when we looked at the guidance and we looked at the regulatory guidance to define a covered contractor as a prime contractor and any of the subcontractors at any tier who’s a party to the covered contract. So when you look at the, that, that, that subcontractor tier level, how far down does it go? And,
Rory Bellina (09:28):
And our example before was let’s say a federal contractor that makes computers, right? So you’ve got the computer manufacturer as a federal contractor. This there, this applies to them, right? Yes. What about the company that makes a chip that goes inside the computer a sub?
Conrad Meyer (09:43):
Well, I got, based on what I’m reading, it looks like it
Rory Bellina (09:46):
Does. Okay. What about the contractor that cleans the chip manufacturer’s building at night?
Conrad Meyer (09:53):
I, you see, I don’t know, that’s the problem. It, it, there’s nothing that says that, for example, the party that cleans the building to make the chips to go into the computer
Rory Bellina (10:03):
To go to the con federal government,
Conrad Meyer (10:04):
The federal government is gonna have to comply with the, with this with this rule. Right. I just, I just don’t know. And
Chris Martin (10:10):
Yeah, I think the,
Conrad Meyer (10:11):
It’s a little unbelievable. I
Chris Martin (10:12):
Think, I think in your example, Rory, the, the cleaning crew of the main prime contractor would be covered. Okay. That’s a good question about the subs.
Rory Bellina (10:22):
Yeah. How far down does this, let’s go because the, the computer example was just easy because when you’re making a computer, there’s parts from everywhere and any, Oh,
Conrad Meyer (10:31):
Well let’s, let’s let take, let’s take it even further than that. So let’s just go to the raw materials that make the chip. And what if they’re made in another country? I mean, all the raw materials say, say the raw materials for the semiconductors which are attained in, in in China or who, who knows or some other country, are they subject to this? I can’t imagine. I mean, how would you enforce that?
Chris Martin (10:53):
Yeah, I think this is just in the United States.
Conrad Meyer (10:56):
I would agree with that. But you see that since there’s no guidance and the definition is so vague and, and obviously, I mean, do, do any of you think that was, you know, a mistake? I mean
Chris Martin (11:07):
No, that was the purpose, right? To make it as broad, broad and inclusive as possible.
Rory Bellina (11:11):
Correct. I think the intent is that they want it to flow down as far possible to your sixth or seventh or eighth sub sub sub. Sure. All the way down to try to capture as many people as they can, you know, to get vaccinated. Right. And we were talking about how this one you know, you know how this one compares, it’s got some very close similarities to the OSHA mandate, some very close similarities to the, the CMS mandate. So Chris, I know we were talking before, you know, how does this one compare to the other mandates as far as, you know, mandatory vaccine testing? Are you allowed to test out of it like you all are with osha or is it like, or is it more like CMS where it’s either vaccinate or, or, or not?
Chris Martin (11:58):
Yeah, this, this the, the federal contractor mandate, first of all, it says that all covered contractor employee employees must be fully vaccinated by December the eighth or whenever they start working for the contractor, whichever date is later. so, so the requirement is you have to be vaccinated or if you’re not vaccinated, then you have to wear a mask.
Rory Bellina (12:27):
Okay. So there’s no testing for this one.
Chris Martin (12:30):
There’s no testing
Rory Bellina (12:31):
Like in Usha.
Chris Martin (12:32):
Right. Okay. So, so the ma I was kind of surprised at the broadness of the masking requirement, both indoors for any unvaccinated individuals and masking indoors of vaccinated individuals where there’s a high concentration of people. So even when you’re vaccinated, you may still have to wear a mask.
Conrad Meyer (12:54):
But wait, wait, the, the vagueness, the, when there’s a high concentration of people, is there, is there some sort of a definition as what that means?
Rory Bellina (13:02):
There is. And, and they, they go into how that’s how that’s defined. And I had that in my notes cuz I, I’d really wanted to bring that up cause I thought it was very interested. One requirement under this policy is that covered contractors have to designate a person to coordinate the implementation and they must check the CDC Covid 19 data tracker view website at least weekly to determine how their area is. And if their area is in an area of high transmission, then the masking procedures that Chris mentioned go in place. If it drops to low, then they change their procedures and it’s less stringent from masking. But if it goes back up to high the next week, then they’re back up to wearing the mask. So from an administrative burden,
Conrad Meyer (13:47):
That’s a, that’s a nightmare.
Rory Bellina (13:48):
They’re gonna have to literally check this. It’s like, it’s a dashboard.
Conrad Meyer (13:52):
What’s a high concentrate? I mean, was it a high, I mean, and when, see, I think when what Chris was saying
Chris Martin (13:56):
It was community transmission.
Conrad Meyer (13:58):
No, but, but, but in terms of employees per area, So in other words, is that, is that what we’re talking about? We’re talking, in other words, if I have for example, a room with 20 employees sitting in cubicles, is that considered a high concentration area or are we talking about high concentration of infected individuals in the, in the parish or, or county? The,
Chris Martin (14:19):
The, the second one.
Conrad Meyer (14:20):
The latter. Okay. Community. So that one is, So there’s no definition about, Okay, I see what you’re
Rory Bellina (14:23):
Talking about. Yeah, they, they define it as right as community transmission. That’s what they’re looking at. So if you’re in an area of high or substantial community transmission, fully vaccinating, people must wear a mask in indoor settings except for limited exceptions in guidance. And then if you’re in a lower moderate community transmission, right, you don’t need to. But if that’s gonna change on a weekly basis, your county or parish, depending on where you are, can go up or down, obviously every
Conrad Meyer (14:51):
Week. So you’re supposed to monitor this on a weekly basis.
Rory Bellina (14:53):
You have to check
Conrad Meyer (14:54):
This. So you have to check the
Rory Bellina (14:56):
Box, you have to check this national registry weekly. And let’s say we’re in Jefferson Parish. Jefferson Parish right now is low or moderate in transmission. So we would not have to wear masks indoor if we were federal contractors. But if there’s a huge spike in cases, someone has to, someone would have to check it next week, this dashboard and say, Okay, masks are back on, and then the following week they might come back off. It, it,
Conrad Meyer (15:20):
So how, how do you, how do you both feel about that? I’m just curious.
Chris Martin (15:23):
Well, what, what’s amazing is how this, these levels change so much, right? I mean, Governor Edwards is on the radio this morning, three months ago we hit a peak. We had 3000 people in the hospital with Covid, right? Three, three months ago. We have 271 today. People today, today, I mean, that’s a huge swing in just three months, less than three months, right?
Conrad Meyer (15:49):
I just, I mean, do y’all find this, y’all find this is gonna be challenging for companies or federal contractors to try to monitor and comply
Rory Bellina (15:58):
With. I think like the other two, I think it’s gonna be very administrative heavy and I think it’s gonna be a burden on, on administrators too. Have to monitor this, have to find out who’s vaccinated and have to find out. We’ve talked in our previous episodes, right? Do you give your vaccinated employees a, a special badge or a sticker? So you, but, but even then they might have to wear a mask. handling that aspect I think is gonna be the hard part. And especially with federal contractors, we’re typically talking about a lot of like development and warehouses where you might have hundreds, thousands shift workers, employees, I mean, it could be federal contractors range, you know, a lot of just regular private companies or federal contractors. It, it could, it could really become an issue if you’ve got a big company with a lot of shift employees keeping track of all this.
Conrad Meyer (16:47):
So what are the penalties here, guys? I mean, that’s just, I mean that’s when I look at non-compliance or say you miss a week or you, you know, one of your employees, just one doesn’t get vaccinated. I mean, what, you know, do we even know? I mean, is that, has that even been discussed?
Rory Bellina (17:02):
There’s not a whole lot out there right now on the penalties, honestly. You know, that’s one thing that, that that, Chris, you
Conrad Meyer (17:08):
Do you lose your contract? Yeah.
Rory Bellina (17:10):
Well, so they have a, they the, under this executive order, they issue some, you know, advisories after it came out and they talked about a possibility of losing the contract. That was, that was the first example give.
Conrad Meyer (17:23):
So let’s let’s pass it first and let see what happens later.
Rory Bellina (17:25):
And, and I think, yes, I think let’s, let’s get it out there. And the threat is that you would lose your contract or if there’s non-compliance, then you would have to terminate, let’s say it’s your sub have to terminate your sub. That’s what was referenced. it’s not as strict where, you know, we talked about an osha, they had an exact dollar amount of how much they were gonna find employers. Well,
Conrad Meyer (17:47):
Let me interrupt you real quick right there. So if that’s the, the case, terminate a sub or you’re gonna lose your contract, that means that the agency that you have the contract with becomes the enforcer. Is that correct? Or is there some other overarching agency like the DOJ or the oig or is it just, say for example, my contract is with the Department of Agriculture, you know, are they the ones that are gonna be the ones checking to make sure that my team is vaccinated and are they the ones that are gonna be enforcing non-compliance?
Rory Bellina (18:18):
It falls under compliance of your, of your contract. Meaning, meaning, you know, whoever your contract, so
Conrad Meyer (18:25):
The party with Right. The agency that your party’s with. Correct.
Rory Bellina (18:27):
Then you would fall out of compliance with your actual
Conrad Meyer (18:30):
Agree. Interesting. Okay.
Chris Martin (18:32):
So just to kind of, let’s just kind of summarize real quick. Remember that this is the federal contractor vaccine mandate. You have to do, like the others, you have to develop policies regarding vaccination, masking, physical distancing. You have to implement those administrative protocols. You have to verify your employees vaccination status. So you can’t just say, Rory, are you vaccinated? And Roy says, yes, no, there has to be actual proof of vaccination. You have to monitor these transmission levels every week. And, and this what I read was OSHA is actually going to help enforce this.
Rory Bellina (19:17):
oh wow. And you mentioned, you mentioned how short-staffed OSHA was in one of our previous episodes, so this is gonna be added on to their responsibilities. Yeah,
Chris Martin (19:26):
And so, you know, it’s a, it’s a federal contractor, right? So for contracts awarded after November the 14th, 2021, the vaccine mandate is required to be in the contracts. There has to be language in the contracts
Conrad Meyer (19:42):
Like compliance, compliance, like in other words, like we do a HIPAA compliance, it’s gonna be compliance with the vaccine mandate and,
Chris Martin (19:46):
And it has to apply to all those downstream subs.
Rory Bellina (19:49):
And another thing that was brought up in, in this guidance for the, the federal workers, when I keep going back to my factory example in my head is this one brings back the six feet of distance. This one brings up that if it’s practical, if you’re not fully vaccinated, that they recommend this six feet of distance at all times. Office, conference room, workspaces, I mean, talking about issues in a factory or something like that. I mean, it, it, it could be a big burden. It could be a very big burden.
Conrad Meyer (20:17):
You think , I mean it looks, to me it looks like it’s a nightmare. And and, and I guess I just, I don’t know. I see that you have to be finished or complied, you know, compliant. Like you said Chris at January 18th, that’s fully compliant. So you’re gonna need to get your, if, if you’re a two shot, right, you’re gonna have to get it literally right before what January 4th. or, or even if you, or if you get the Moderna, you have to get it like in December for a three week wait. So I mean, you’re gonna have to really I mean, comply with this very quickly. We don’t have a lot of time.
Chris Martin (20:48):
Well, and, and the other thing is, I think our listeners for those that you know, are affected by these Mac vaccine mandates, don’t be lulled into a false sense of security right now because they’re halted, because the sixth circuit or a federal court of appeals could change that could reverse that in a day.
Conrad Meyer (21:08):
Chris Martin (21:08):
And we could be right back on the strict timetable. So you want to use this time to get prepared. If you don’t need it, you don’t need it, but you don’t want to get caught short. Where if a court of appeals or the Supreme Court ends up enforcing these ma these vaccines and you’ve got days to comply and you haven’t done
Conrad Meyer (21:28):
Anything, Well, I guess, I mean have the protocols in place, right? I mean, if you’re on the edge, a policy, right? If you’re on the edge and you don’t want to do it and you say, Oh wow, the sixth circuit, for example, or, or the Western district has issued a stay, I’m just gonna wait and, and see how that plays out. But what you’re saying is at least have the stuff ready, have the protocols and policies ready or some compliance ready so that in in effect whatever falls out the sequela from the appellate court you might want to have it ready to go.
Rory Bellina (21:56):
Right? And, and similar, I do want to miss those points similar to our other ones. This one does have the medical and religious exemptions, which, you know, know another, another thing that needs to be handled properly. if you have a valid medical exemption against either the vaccine or the mask or religious that’s in here as well where it’s allowed making accommodations so there’s no ADA issues, but, Right. that’s something else that, you know, a company might not have dealt with before and now they’re gonna have to have, you know, that, that the person checking the vaccinations, making sure people were their masks, checking that dashboard weekly and dealing with these accommodations, putting into place procedures to handle those requests.
Chris Martin (22:36):
I mean, you and I were on the phone yesterday with a fairly large, you know, several hundred employee client and, and the well intentioned HR director knows about Americans with Disabilities Act, but she hadn’t ever had to really enforce it or, or follow it. So we’re gonna, you know, set out a memo for her. These are the steps you need to take in handling those exemptions.
Rory Bellina (23:02):
Yep. So, like I said, I
Conrad Meyer (23:04):
Mean, that’s good guidance though, cuz you need to have that there. Any company needs to have that even from your, your small company to your large company. Because if you don’t, if you don’t have a process right, to handle ADA on the accommodation or the religious exemptions you’re really gonna fall into a trap
Rory Bellina (23:19):
When Yep, absolutely. And, and I think we all, you know, all three of us in the room see the intent of these three vaccine mandates and, and the intent is to get more people vaccinated. and we’ve talked about how they’ve been implemented, the pros and cons, the barriers and, and the hurdles and, and how they’ve been stayed in, in the court. So I think the, you know, the big takeaway from all this, you know, whether you fully intend to comply or you’re gonna dig your heels in and not comply and, and try to find a way out of it, is that you need to have some policies and procedures in place. I personally don’t think this is going away. I think that, I think the courts may reign some of this back, but I do think that maybe when this dies down, and it might take a couple years for it to get worked out, I think we’re gonna see more and more integration of, you know, these vaccinations being required for certain things. It might not be, you know, right now that they’re trying to get it implemented as fast as possible. I think in due time we’re, we’re eventually gonna have to deal with this.
Conrad Meyer (24:20):
That’s two words. Be prepared. Yes,
Rory Bellina (24:22):
Conrad Meyer (24:23):
Prepared, and that’s it. Be
Rory Bellina (24:24):
Prepared, have policies in place. The the best thing is to have a good policy in place because that’s what all three of these have in common is that they want a designated person, a very stringent written policy. They, they want you to, to show that you’re trying to comply. And if you don’t have anything and, and you get inspected or, or someone files a, you know, a claim against you, that’s when you’re gonna get in trouble when you just turn a blind eye
Conrad Meyer (24:46):
To it. That’s a good point though. I mean, I mean, regardless of your personal feelings, right? Whether, whether what, whatever side of defense you’re on, you hate it, you don’t want it. Absolutely not. Government can’t tell me what to do versus absolutely I want it, everybody should get it. My neighbor, whoever everybody I work with should have it. It doesn’t matter because if it’s the laws, regulatory issues, they’re coming down from various standpoints, cms, osha, wherever be prepared especially if you’re the employer. Real thinking. All right, Good. Very good. I think so. All right, well I think that’s gonna wrap it up for another episode here at Health Lot Talk. we had Rory Conrad and Chris in the house, so thank you very much for joining. We hope that you continue to listen to us and remember, leave any comments you have about maybe topics you want to hear or comments about the show, and we’ll absolutely get back to you. So thank you very much and until next time, have a good day.
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Rounding out the series on vaccine mandates, this episode discusses the vaccine mandate for Federal Employees. Conrad Meyer, Rory Bellina, and Chris Martin discuss how this mandate is similar (and different) to the OSHA and CMS mandate.
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