Federal Vaccine Mandates: Step-by-Step Compliance Guide for Community Action

This step-by-step compliance guide is intended to help the Community Action network navigate the employee vaccination mandates announced by OSHA, Head Start, and the Centers for Medicare & Medicaid Services (CMS). We describe the planning process your CAA should consider as you develop and update your policies to reflect the new requirements. We also provide template policies and additional resources to assist CAAs in preparing for and implementing the mandates. We will update this resource as additional guidance is issued and legal developments arise.

1/13/22: The OSHA vaccine-or-test mandate has been blocked nationwide by the U.S. Supreme Court. The CMS vaccine mandate has been upheld by the U.S. Supreme Court and is currently in effect.

1/3/22: The Head Start Interim Final Rule establishing the Head Start vaccination and masking mandate has been preliminarily enjoined in 25 states: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming. Head Start, Early Head Start, and Early Head Start-Child Care Partnership grant recipients in those 25 states are not required to comply with the rule pending future developments in the litigation.

OSHA Emergency Temporary Standard (ETS)

The OSHA ETS applies to private employers with 100 or more employees, including full- and part-time employees at all business locations and employees who work exclusively from home. Independent contractors are not considered employees for purposes of the OSHA ETS. If an employer meets the 100-employee threshold at any point while the OSHA ETS is in effect, it will be subject to the rule and must comply for the duration of the ETS.

OSHA anticipates that the ETS will be in effect for six months from the date of publication in the Federal Register (i.e., through May 6, 2022). However, OSHA will continue to monitor trends in COVID-19 infections and deaths as more of the workforce and the general population become vaccinated and the pandemic continues to evolve. Where OSHA finds a grave danger from the virus no longer exists for the covered workforce (or some portion thereof), or new information indicates a change in measures is necessary to address the grave danger, OSHA will update the ETS, as appropriate.

The Occupational Safety and Health Act of 1970, which established OSHA, also allows states and U.S. territories to adopt their own occupational safety and health plans (referred to generally as “State Plans”) that must be approved by federal OSHA. State Plans may cover public employees only, or all public and private-sector employees, but they must be at least as restrictive as federal OSHA rules and regulations. You can find a map with information about state plans and their scope here.

CAAs in State Plan states should review their State Plan’s scope of coverage on osha.gov to determine whether they will be covered by the federal OSHA ETS or their State Plan. However, CAAs covered by State Plans should prepare to comply with a rule that is similar, if not identical, to the OSHA ETS. The OSHA ETS requires that State Plans adopt a conforming state-level emergency temporary standard within 30 days of the publication of the ETS, or  by December 6, 2021. OSHA has indicated that it will work with the State Plans on adopting an emergency standard that is at least as effective as the ETS within the 30-day timeframe required by 29 CFR 1953.5(b). Alternatively, they may demonstrate that promulgation of a state ETS is not necessary because the state already has standards that are the same or at least as effective as the federal standard.

If a State Plan fails to adopt this ETS, or a comparable standard, Federal OSHA will determine that the State Plan is not as effective as federal OSHA. Federal OSHA may then commence proceedings to ensure adequate protections for covered workers within the state. This may include Federal OSHA’s reconsideration and possible revocation of State Plans previously approved by Federal OSHA. At this point, CAAs in State Plan states should prepare to comply with the OSHA ETS, as we expect that all State Plan states will be required to adopt a comparable standard.

Centers for Medicare & Medicaid Services (CMS) Interim Final Rule

The CMS Interim Final Rule (the “CMS rule”) applies to Medicare- and Medicaid-certified healthcare providers and suppliers that are regulated under the Medicare health and safety standards known as Conditions of Participation, Conditions for Coverage, or Requirements. Specifically, the CMS rule applies to the following:

  • Ambulatory Surgical Centers;
  • Hospices;
  • Psychiatric residential treatment facilities;
  • Programs of All-Inclusive Care for the Elderly;
  • Hospitals;
  • Long Term Care (LTC) Facilities, including Skilled Nursing Facilities and Nursing Facilities, generally referred to as nursing homes;
  • Intermediate Care Facilities for Individuals with Intellectual Disabilities;
  • Home Health Agencies;
  • Comprehensive Outpatient Rehabilitation Facilities;
  • Critical Access Hospitals;
  • Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services;
  • Community Mental Health Centers;
  • Home Infusion Therapy suppliers;
  • Rural Health Clinics and Federally Qualified Health Centers; and
  • End-Stage Renal Disease Facilities.

CAAs are only required to comply with the CMS mandate in relation to healthcare facilities that fall into one of the above categories. Thus, receipt of Medicare or Medicaid funds will only require compliance with the CMS rule where the funds are used in connection with the operation of one or more of the facilities described above.

Head Start Mandate

The Head Start Interim Final Rule (the “Head Start Rule”) applies to all Head Start and Early Head Start programs, including programs offered by delegate agencies and Early Head Start-Child Care Partnerships. The mandate specifically applies to:

  • all staff who work with enrolled Head Start children and families in any capacity, regardless of funding source;

  • Head Start contractors whose activities involve contact with or providing direct services to children and families; and

  • volunteers in Head Start classrooms or working directly with children.

State Law Preemption

All three federal vaccine mandates expressly claim to preempt all state and local laws that restrict employers from implementing vaccine mandates. The Head Start rule also claims to preempt State laws that prohibit employers from requiring universal masking. The OSHA ETS also states its intent to preempt any state or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing of employees.

The conflict between the federal mandates and state laws is likely to result in extensive and contentious litigation. It can be difficult to predict whether courts will interpret two laws to directly conflict with one another, but in light of the tight timeline for compliance as discussed below, CAAs should be prepared to comply with the federal mandates as written.

In addition to the rules discussed above, CAAs may be subject to rules on employee vaccinations at the state or local level. To the extent that those state and local rules do not conflict with the federal guidance, CAAs should comply with them in addition to the federal mandates.

This resource is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance Center. It was created by CAPLAW in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services, Cooperative Agreement Award Number 90ET0467-03-C3. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.