HJNO Mar/Apr 2022

HEALTHCARE JOURNAL OF NEW ORLEANS I  MAR / APR 2022 21 to serve as its proposal for a permanent workplace safety standard, meaning that it is possible that OSHA may issue a more narrowly-tailored temporary rule or adopt a permanent standard with new requirements at some point in 2022. It is important to keep in mind that employers may also be subject to COVID- 19 vaccination and testing requirements at the state and local levels, which are not affected by the Supreme Court’s decision. Specifically, twenty-eight states and U.S. ter- ritories operate their own OSHA-approved state workplace safety plans, some of which (e.g., California) have already begun imple- menting vaccination mandates into state law. In other words, healthcare employers are by no means “out of the woods” when it comes to the OSHA ETS, and it is impor- tant to consult with legal counsel about your business’s compliance plan that will be put into place if legally necessary, as well as any state or local requirements related to vac- cination, testing, or masking that must be followed. As a result of the Supreme Court’s deci- sion upholding the CMS rule, healthcare providers subject to the CMS rule in the 24 states (Alabama, Alaska, Arizona, Arkan- sas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, NewHampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming) covered by this decision will now need to establish plans and procedures to ensure their staff are vaccinated and to have had their employees receive at least the first dose of a COVID-19 vaccine by Feb. 14, 2022, with a final-dose deadline of March 15, 2021. This decision does not affect compliance timelines for providers in the District of Columbia, U.S. territories, and the 25 other states where the preliminary injunction was previously lifted, all of which must have had employees receive their first dose by Jan. 27, 2022, and their final dose by Feb. 28, 2022. On Feb. 4, 2022, 16 state attorneys general (including 14 of the same ones who unsuc- cessfully appealed to the Supreme Court to have the CMS rule struck down) filed a new lawsuit in Louisiana federal court in a renewed attempt to block the CMS rule based on their positions that the Omicron variant’s resistance to vaccines and the healthcare worker shortages around the country have changed the legal landscape. The states represented in the new lawsuit areAlabama, Arizona, Georgia, Idaho, Indi- ana, Kentucky, Louisiana, Mississippi, Mon- tana, Ohio, Oklahoma, South Carolina, Ten- nessee, Utah, Virginia, andWest Virginia. Regarding the status of the federal con- tractor mandate, on Jan. 21, 2022, the Geor- gia federal judge who issued one of the injunctions clarified that the court’s rul- ing applies only to the EO 14042’s vaccine mandate and not the requirements relating to masking, social distancing, and designa- tion of an individual at covered workplaces to coordinate COVID-19 safety protocols. However, since there are multiple injunc- tions currently in effect that all use differ- ent restricting language, it remains unclear whether enforcement of EO 14042 is par- tially or entirely blocked. There are currently appeals taken by the federal government in the Fifth, Sixth, Eighth, and Eleventh Cir- cuits seeking to have the injunctions dis- solved and EO 14042 reinstated, but those appeals will likely not be resolved until mid- 2022 at the earliest. This means that, even if the federal courts of appeals, and ultimately the Supreme