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 Mandate

OSHA will enforce compliance with the ETS using its existing inspection and citation schemes, which rely heavily on employee complaints and employer reporting to prompt investigations. The agency also allocates enforcement resources towards its own internal priorities, such as the COVID-19 National Emphasis Program, which targets high-hazard industries such as healthcare, meat and poultry processing, and manufacturing.

Penalties for violating OSHA standards vary based on the severity of the risk posed to employees and the intent of the employer, and range from approximately $9,639 per violation to $136,532 per violation. The OSH Act distinguishes between violations that are “serious” and “not of a serious nature” as a matter of degree. It also levies higher penalties for employers who willfully or repeatedly violate OSHA standards, or for those that fail to correct a violation for which a citation has been issued. OSHA inspectors have considerable discretion to adjust the size of a civil penalty based on the size of the business being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations. In particularly egregious cases, they may issue citations for each day during which a violation continues, or each employee that remains noncompliant. OSHA’s current penalty amounts, adjusted for inflation, can be found here.

OSHA imposes its harshest penalties on those who knowingly make false statements or certifications to the agency. An individual who lies about their vaccination status to their employer under the OSHA ETS may be subject to civil fines and imprisonment for up to six months. If their employer knows that the document is false and accepts it anyway for the purpose of complying with the ETS, the employer will be subject to the same penalties.

CMS Mandate

CMS will enforce compliance with its rule through the network of state surveyors that assess CMS-certified providers and suppliers on a regular basis. CMS plans to issue interpretive guidelines for surveyors that will include instructions on reviewing an employer’s records of staff vaccinations, conducting interviews with staff to verify their vaccination status, and reviewing the employer’s vaccination policy. Providers and suppliers cited for noncompliance may be subject to enforcement remedies imposed by CMS depending on the level of noncompliance and the remedies available under federal law (e.g., civil money penalties, denial of payment for new admissions, or termination of the Medicare/Medicaid provider agreement). CMS will closely monitor the status of staff vaccination rates, provider compliance, and any other potential risks to patient, resident, client, and PACE program participant health and safety.

Head Start Mandate

The Head Start rule adds new provisions to the Head Start Program Performance Standards (HSPPS). The Office of Head Start will monitor compliance with the Head Start rule in the same way that it monitors other health and safety standards requirements in the HSPPS. As with other HSPPS, failure to comply can result in revocation of the award and recompetition for funding.

Equal Employment Laws

Failure to provide reasonable accommodations for employees on medical and religious grounds can have serious consequences for an employer. Equal employment laws such as the ADA and Title VII may be enforced by the EEOC or by individual plaintiffs. State-level anti-discrimination statutes may be enforced by the state attorney general or state equal employment office. Usually, an employee must go through the process of submitting a charge of discrimination to a local office before they can file a lawsuit. The EEOC or state office will notify the employer against whom the allegation has been raised and will seek to mediate or settle the issue. If they cannot reach an outcome that is acceptable to both parties, they may conduct an investigation and issue a determination on whether there is probable cause to believe that the employer violated the employee’s rights. This may give the employee the right to bring a lawsuit.

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.