AMARILLO, TX – In last week’s Medtrade Monday, we discussed the recent CMS Interim Final Rule and OSHA Emergency Temporary Standard (ETS). This article discusses the latest regarding the ETS.
On Nov. 4, 2021, OSHA issued an ETS applicable to all employers with 100 or more employees (“large employers”). The ETS requires large employers to mandate that their employees receive a COVID-19 vaccination or begin wearing masks at all times while in the workplace. The ETS also requires large employers to collect weekly COVID-19 tests from unvaccinated employees beginning January of 2022.
On Saturday, November 6, 2021, the Fifth Circuit Court of Appeals (the Federal Court of Appeals governing Louisiana, Mississippi, and Texas) issued a stay of enforcement temporarily blocking the ETS. The Fifth Circuit granted the emergency stay stopping enforcement of the new policy, saying it raises “grave statutory and constitutional issues,” and added that the rule was suspended “pending further action by this court.” The DOL responded quickly by stating, “The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to grave danger and a new standard is necessary to protect them.”
On November 12, 2021, the Fifth Circuit continued its stay of enforcement “pending adequate judicial review of … a permanent injunction.” The Order states, in part: “Enforcement of the Occupational Safety and Health Administration’s ‘COVID-19 Vaccination and Testing; Emergency Temporary Standard’ remains STAYED pending adequate judicial review of the petitioners’ underlying motion for permanent injunction. In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.”
In response to the Fifth Circuit’s Order, OSHA announced that it is suspending enforcement of the ETS. According to OSHA: “The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS …‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending further developments in the litigation.”
Various groups have filed multiple petitions for review of the ETS in 11 of the 12 Circuit Courts of Appeals. The Fifth Circuit is the first to make a ruling. On November 16, 2021, the petitions for review from all the circuit courts were consolidated. The Sixth Circuit Court of Appeals (the Federal Court of Appeals governing Kentucky, Michigan, Ohio, and Tennessee) was chosen via a lottery system to oversee all consolidated petitions for review. The Sixth Circuit will ultimately determine whether to continue, alter, or lift the Fifth Circuit’s order of a stay of enforcement. OSHA acknowledged it has suspended implementation and enforcement of the ETS pending further court action.
If the stay is lifted, OSHA may once enforce and continue its implementation of the ETS. However, continuing or lifting the stay is not a final comment on the legality of OSHA’s actions in issuing the ETS. Final resolution on whether the ETS was a proper exercise of OSHA’s authority will likely hinge upon review by the United States Supreme Court.
AAHOMECARE’S EDUCATIONAL WEBINAR
Sales Tax and Products Billed Through Insurance: Avoid the Landmines
Presented by: Jeffrey S. Baird, Esq., Brown & Fortunato & Steve Moore, Esq., Jackson Walker
Tuesday, December 14, 2021
1:30-2:30 p.m. CENTRAL TIME
In the past, DME suppliers primarily billed traditional Medicare and Medicaid. This is changing. With the expansion of Medicare and Medicaid managed care, suppliers are now increasingly billing commercial insurers. Unfortunately, a number of suppliers have the mistaken impression that they do not have to remit sales tax. Failure to remit sales tax, even when the supplier is unable to collect the sales tax from the patient or insurer, can have serious consequences for the supplier. Each state has the authority to determine its sales tax requirements. While there are similarities across states, there are also differences. For example, a particular product may be subject to sales tax in State A, but not in State B. This program will present an overview of state sales tax laws and will then focus on the laws of five of the larger states. The program will discuss the sources that DME suppliers can go to in order to determine if a product is subject to sales tax in a particular state. The program will also discuss the steps that a DME supplier can take if it and a state enforcement agency disagree on whether a product is subject to sales tax.
Register for Sales Tax and Products Billed Through Insurance: Avoid the Landmines on Tuesday, December 14, 2021, 1:30-2:30 p.m. CT, with Jeffrey S. Baird, Esq., of Brown & Fortunato and Steve Moore, Esq., of Jackson Walker.
Members: $99
Non-Members: $129
Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers, and other health care providers throughout the United States. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or [email protected].
Brittany K. Hinton, JD, is an attorney with the Labor and Employment Law Group at Brown & Fortunato. She represents clients in a wide range of employment litigation and agency matters, as well as in employment counseling throughout the United States. Ms. Hinton can be reached at (806) 345-6365 or [email protected].
