Federal Vaccine/Testing Mandates do not Apply to Wisconsin Municipalities
Yesterday, the Biden Administration, through the Occupational Safety and Health Administration (OSHA), issued an emergency temporary standard (ETS) mandating vaccinations or weekly testing for workers of employers with 100 or more employees. The ETS was published in the Federal Register today. Also, yesterday, the federal Department of Health and Human Services Centers for Medicare & Medicaid Services (CMS) published an interim final rule imposing vaccine mandates on Medicare- and Medicaid-certified providers. On September 9, President Biden issued an Executive Order requiring federal contractors to comply with vaccine mandates. With this flurry of activity, the League has received questions from members about whether these mandates apply to Wisconsin municipalities.
Are Wisconsin municipalities covered by the vaccination/testing mandate applying to employers
with 100 or more employees?
No, the ETS does not apply to local government employers in states like Wisconsin that lack OSHA-approved occupational safety and health programs (“State Plans”). Local government employers and employees in state’s without State Plans are exempt from OSHA coverage under the OSH Act (29 U.S.C. 652 (5). In Wisconsin, the ETS only applies to private employers with 100 or more employees. For more information see question 2E of the OSHA FAQ document.
Are municipal EMS services covered by the CMS vaccine mandate applicable to health care providers that receive Medicare and Medicaid?
No, the Centers for Medicare and Medicaid Services (CMS) interim final rule applies only to the Medicare- and Medicaid-certified providers and suppliers listed below:
Ambulatory Surgical Centers (ASCs) ● Hospices ● Psychiatric residential treatment facilities ● Programs of All-Inclusive Care for the Elderly ● Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children’s hospitals, transplant centers, cancer hospitals, and rehabilitation hospitals/inpatient rehabilitation facilities) ● Long Term Care (LTC) Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes ● Intermediate Care Facilities for Individuals with Intellectual Disabilities ● Home Health Agencies (HHAs) ● Comprehensive Outpatient Rehabilitation Facilities ● Critical Access Hospitals (CAHs) ● 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 (HIT) suppliers ● Rural Health Clinics /Federally Qualified Health Centers ● End-Stage Renal Disease Facilities
Are municipalities that have received federal funding from the CARES Act and the American Rescue Plan Act considered federal contractors and therefore subject to the vaccine mandates in the September 9 Executive Order?
No, Executive Order 14042, imposing vaccine mandates on federal contractors, applies to federal contractors and subcontractors who enter into “any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument.” (See section 5 on Applicability).
The Executive Order specifically states that it shall not apply to grants.