CMS Expands Vaccination Mandate

The Centers for Medicare and Medicaid Services (CMS) and the Centers for Disease Control and Prevention (CDC) announced last week that upcoming emergency regulations requiring vaccinations for nursing home staff will be expanded to include staff of hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs. The announcement of the expanded CMS vaccination mandate is here.

CMS is developing an Interim Final Rule for the mandate to be issued in October. LeadingAge NY had expected the nursing home rule to be published in September. Sources indicate that all settings subject to the mandate will be rolled into one Interim Final Rule expected in October. It will be in effect upon publication, public comment will be allowed after publication, and changes might be made to the rule after the fact. LeadingAge NY will be sure to keep members updated as we learn more about the mandate.

Executive Orders Establish Vaccination Mandates for Federal Employees and Contractors

Two federal executive orders (EOs) on vaccination mandates were issued on Sept. 9^th. The first, Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, requires agencies under the Executive Branch to implement a vaccine mandate for staff “with exceptions only as required by applicable law.” It is unclear if the guidance, due to be issued on Sept. 16^th by the Safer Federal Workforce Task Force, will include medical and religious exemptions.

The second EO, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, establishes a vaccine mandate for federal government contractors and subcontractors to be developed by the Safer Federal Workforce Task Force by Sept. 24^th. The guidance will outline “definitions of relevant terms,” “explanations of protocols required of contractors and subcontractors,” and “any exceptions” to the vaccination mandate. The EO provides that new government contracts and contract-like instruments must include a clause requiring the contractor and “any subcontractors (at any tier)” to comply with “all guidance” issued by the Task Force. The mandate will be applicable to “any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”

The vaccine mandate in the second EO is applicable to any contract or contract-like instrument that is entered into, extended, renewed, or has an option exercised on or after Oct. 15, 2021. However, the EO is effective immediately, and agencies are “strongly encouraged, to the extent permitted by law” to extend the vaccine mandate to existing contracts not otherwise subject to the EO. The EO explicitly excludes federal grants, contracts with Indian Tribes, employees who perform work outside of the United States, contracts equal to or less than the simplified acquisition threshold (generally $250,000), and subcontracts solely for the provision of products.

It is being reported that neither EO will offer a test-out option.

Vaccine Mandate and Test-Out Option for Private Sector Companies with 100+ Employees

President Biden also announced that the Occupational Safety and Health Administration (OSHA) is developing an emergency temporary standard (ETS) that will require all employers with 100 or more employees to ensure that their workforce is fully vaccinated and require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.

Reporting indicates that the ETS is expected to require employers to provide paid time off for employees to obtain vaccinations, including recovery time associated with post-vaccination reactions.

Questions LeadingAge NY has at this time include how the employee threshold will be determined, who will pay for testing, and whether the mandate will pertain to those working from home. Members not subject to the CMS and New York State vaccine mandates may be subject to this requirement and should start considering planning and protocols to carry out the requirement.

Currently, there is little substantive information on this initiative. LeadingAge NY will provide more detail on the various regulatory documents referenced above as they are issued.

Contact: Meg Everett, meverett@leadingageny.org, 518-929-9342