CMS & OSHA Issue COVID-19 Vaccine Mandates

Both the federal Centers for Medicare and Medicaid Services (CMS) and the Occupational Safety and Health Administration (OSHA) issued COVID-19 vaccine mandates that were officially published in the federal register this morning.

CMS Mandate: Federal Register :: Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination

According to the FAQs provided by CMS, CMS Omnibus Staff Vax Requirements - External FAQ (508 Compliant), the CMS vaccine mandate does NOT apply to assisted living facilities (see page 3):

Q:  What about Assisted Living Facilities, Group Homes, or other similar settings?

A:  This regulation only applies to Medicare and Medicaid-certified facilities. CMS does not have regulatory authority over care settings such as Assisted Living Facilities or Group Homes. This regulation will also not apply to physician’s offices because they are not subject to CMS health and safety regulations.

Q:  Does this requirement apply to Medicaid home care services, such as Home and Community-based Services (HCBS), since these providers receive Medicaid funding but are not regulated as certified facilities?

A:  No, this regulation only applies to those Medicare and Medicaid-certified provider and supplier types that are subject to CMS health and safety regulations. CMS’s health and safety regulations do not cover providers of Home and Community-based Services.

OSHA Mandate: Federal Register :: COVID-19 Vaccination and Testing; Emergency Temporary Standard

Beginning January 4, 2022, the OSHA Emergency Temporary Standard (ETS) requires employers with 100 or more employees to ensure all employees are fully vaccinated or alternatively produce a weekly negative COVID-19 test. OSHA has provided several calculation examples to determine if an employee count meets the compliance threshold; however, they also note that they may later expand the requirement to smaller-sized employers.

To be considered fully vaccinated, employees must have received at least two doses of the mRNA vaccines (Pfizer BioNTech or Moderna) or one dose of the Johnson & Johnson vaccine and have 14 days elapsed since completing the vaccine series (a booster dose is not required to be considered fully vaccinated). Employers will be required to provide paid leave to employees to receive vaccinations and for any time needed to recover from the side effects of vaccination; paid time must be made available to employees no later than December 5, 2021.

Employees who do not satisfy the vaccine requirement may produce a verified negative test on at least a weekly basis (PCR or rapid antigen). Employers will not be required to supply or pay for tests to employees who opt for the alternative testing requirement; however, other laws or agreements that require supply or payment of testing may supersede the ETS. Beginning December 5, any employee who is not vaccinated must also wear a face covering while in the workplace.

The ETS further requires that employers remove any employee from the workplace who receives a diagnosis of COVID-19 from a health care provider or who tests positive for COVID-19. An employee who receives a positive test or has been diagnosed with COVID-19 by a licensed healthcare provider is not required to be tested for 90 days following the date of their positive test or diagnosis, due to the high likelihood of false positive results.

Employers must maintain a record of each employee’s vaccination status and must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated. The employer must also maintain a roster of each employee’s vaccination status. Employers that have ascertained employee vaccination status through another form of attestation or proof prior to the ETS’s effective date, and retained records of that ascertainment, are exempt from the determination of vaccination requirements. Employers must also maintain a record of each test result provided by each employee or obtained during tests conducted by the employer.

 Employers not in compliance with the ETS may be subject to a $13,653 per violation penalty, with a maximum penalty of $136,532 per violation for willful or repeated violations. If there are multiple violations from a single incident, multiple penalties may be levied against the employer.

Please note: As currently written, this Vaccine ETS does not apply to “Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of § 1910.502” – i.e., the Healthcare ETS that OSHA released in June 2021. Our understanding of this is that the Vaccine ETS published today does not currently apply to providers already subject to the previous Healthcare ETS while that Healthcare ETS is still in effect. The Healthcare ETS is set to expire two months after the implementation of the new Vaccine ETS, meaning that senior living providers may not yet be subject to the current Vaccine ETS until the prior Healthcare ETS expires, but will be subject for 4 of the 6 months the new Vaccine ETS is set to be in effect. OSHA notes that some employers may proactively comply with the new Vaccine ETS requirements before the end date of the prior Healthcare ETS. While there is a gap/overlap of rules, providers should expect to be subject to a federal mandate through the Healthcare ETS, Vaccine ETS, or the CMS IFR.

We will continue to keep you posted as more information becomes available.