Update on Two Important Vaccine Mandates That Could Impact Your Business

Published in Government Relations on November 04, 2021

The White House has issued new information to clarify two separate and distinct vaccine mandates that will impact several businesses throughout the U.S; namely 1) a vaccine mandate for staff at various healthcare provider settings and 2) a vaccine mandate for employers with 100 or more employees. The fact sheet for both mandates can be found here: https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/.

Both CMS and OSHA have issued updates on the topic as well, so there is a lot of information to digest. Below is VGM’s current summary on both mandates based on the information we currently have:

Healthcare Workers – CMS Vaccine Mandate

Staff at DME/HME providers may be exempt from the vaccine mandate for workers in healthcare setting. When CMS originally published their press release on September 9 regarding the vaccine mandate for healthcare workers, there was a hyperlink on the word facilities, and if you clicked on that word facilities, it took you to a list of facility types which included Durable Medical Equipment. That led us to believe that DME companies would be included in the mandate.

However, on November 4, 2021, CMS released additional information regarding the mandate, including an FAQ document that provides some additional insight into who is included, as well as the fact that not ALL facilities are included. The FAQ document includes the following FAQs that suggest staff at DME providers are not included in the mandate.

Q: To which provider and supplier types does this apply?

A: The staff vaccination requirement applies to the following Medicare and Medicaid-certified provider and supplier types: Ambulatory Surgery Centers, Community Mental Health Centers, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, End-Stage Renal Disease Facilities, Home Health Agencies, Home Infusion Therapy Suppliers, Hospices, Hospitals, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services, Psychiatric Residential Treatment Facilities (PRTFs) Programs for All-Inclusive Care for the Elderly Organizations (PACE), Rural Health Clinics/Federally Qualified Health Centers, and Long Term Care facilities.

Q: Are any regulated provider or supplier types excluded?

A: Religious Nonmedical Health Care Institutions (RNHCIs), Organ Procurement Organizations (OPOs), and Portable X-Ray Suppliers are not included in these requirements.

RNHCIs do not furnish, on the basis of religious beliefs, through its personnel or otherwise, medical items and services (including any medical screening, examination, diagnosis, prognosis, treatment, or the administration of drugs) for their patients, but instead furnish only nonmedical nursing items and services to beneficiaries who choose to rely solely upon a religious method of healing, and for whom the acceptance of medical services would be inconsistent with their religious beliefs (Note that the religious components of this type of healing services are not covered by CMS under this benefit; only nonmedical items and services provided exclusively through nonmedical nursing personnel who are experienced in caring for the physical needs of nonmedical patients are covered). We therefore do not believe it would be appropriate to CMS.

For OPOs and Portable X-Ray Suppliers, it is important to note that the staff of these entities are indirectly included in the vaccination requirements through their service arrangements with hospitals, LTC facilities, and other providers and suppliers included under this rule. A service arrangement is when these providers have a contract with other providers to furnish services. That contract may require individuals from these organizations to be vaccinated. Additionally, it is possible that entities not covered by this rule may still be subject to the other state or federal COVID-19 vaccination requirements, such as those being issued by the Occupational Safety and Health Administration (OSHA).

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.

It is important to note that while several of the other “facilities” that were listed where DME was listed in the Sept. 9 announcement, DMEs are NOT listed in the Nov. 4 release as being included. Based on this information, it appears that DME providers are not included in the vaccine mandate for healthcare settings.

Employers with 100+ Employees – OSHA Vaccine Mandate

Employers who employ, in total, at least 100 employees, regardless of how many locations, sites, offices, etc. they have, will be required to ensure all of their employees are fully vaccinated by or before January 4, 2022. Employers will also be required to provide paid time off to allow employees to go get vaccinated. Employees do have the right to remain unvaccinated, but those who choose to remain unvaccinated will be required to test for COVID-19 on a weekly basis at minimum, and will be required to wear a face mask in the workplace setting. Employers are not required to provide or pay for the weekly COVID-19 tests. Employers will also have to keep track of the vaccination status (only initial vaccinations, not ongoing boosters) of each employee, and for those who are unvaccinated, the weekly test results of each employee. Employees who exclusively work remotely will not be required to test weekly, but will need to produce a negative test result within 7 days before coming into the office setting for any reason. The full OSHA Emergency Temporary Standard (ETS) can be found here: https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf. In addition to that, the FAQs regarding the OSHA mandate can be found here: https://www.osha.gov/coronavirus/ets2/faqs.

VGM will continue to monitor this topic of vaccine mandates and will communicate any relevant updates to you in a timely manner.

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