OSHA & CMS Unveil New COVID-19 Vaccination Rules – Potential Whistleblower Protections for Employees

November 4th, 2021

On Thursday, November 4, 2021, both OSHA and CMS announced new vaccination requirements for private sector and healthcare workers. These rules may provide new protections for employees who experience retaliation for raising concerns when their employer is not in compliance with COVID-19 protection requirements.

OSHA

The Occupational Safety and Health Administration’s emergency temporary standard (ETS) went into effect to protect employees of large employers from the negative effects of COVID-19. Employers with more than 100 employees are required to implement a mandatory COVID-19 vaccination policy or to require employees to undergo weekly COVID-19 testing and wear a face covering at work. The ETS does not apply to employees working from home or those who work exclusively outdoors.

OSHA enforces the many whistleblower statutes that protect you from retaliation in various situations. Essentially, an employer cannot retaliate by taking “adverse action” against a worker who reports injuries, safety concerns or engages in other protected activity. The whistleblower protections were designed to maximize the likelihood that employees report unsafe conduct. Whistleblower laws help people maintain safe practices in the workplace and often help the public at large as well.

In Minnesota, employees are also protected under the Minnesota Whistleblower Act from whistleblower retaliation by their employer if they report or refuse to engage in illegal conduct. Employees who are retaliated against for reporting OSHA violations, including an employer’s failure to follow the new COVID-19 ETS, may have significant legal protections. When employees are retaliated for their good-faith reports, they may be entitled to wage loss damages and emotional distress damages, as well as attorneys’ fees and costs.

CMS

The Centers for Medicare and Medicaid Services (CMS) issued requirements for healthcare facilities, including hospitals, skilled nursing facilities, and nursing homes that participate in Medicare and Medicaid programs to require COVID-19 vaccination by January 4, 2022. The CMS rule does not include an exception for a weekly testing option.

To avoid overlap, OSHA’s ETS rule does not apply to healthcare facilities covered by the CMS rules. The intent in keeping the two separate is to keep businesses from having to track different vaccination requirements for the same workers.

Employees who experience retaliation for reporting concerns that their employer is not in compliance with CMS’ rule may have whistleblower protections under a variety of laws, including the Minnesota Whistleblower Act.

The federal government has also emphasized that these rules preempt any contradictory state or local laws, including those that restrict an employers’ ability to impose vaccination, testing, or masking requirements.

Additional Resources:

https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf

https://public-inspection.federalregister.gov/2021-23643.pdf

https://public-inspection.federalregister.gov/2021-23831.pdf