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Answers to Your Questions About Board Members and the COVID-19 Vaccination Mandate

LeadingAge NY members have asked whether the COVID-19 vaccination mandate applies to board members. Both the federal and State vaccination mandates apply to volunteers, regardless of patient or resident contact. As detailed below, the federal mandate explicitly references board members, whereas the State mandate does not. Under both the federal and State mandates, volunteers who serve exclusively remotely, and do not attend in-person meetings, are exempt. Further, for providers that are subject only to the State mandate and not the federal mandate (e.g., adult care facilities (ACFs) and licensed home care services agencies (LHCSAs)), it appears that volunteers who have only one-time or sporadic in-person contact with patients or staff are also exempt. Thus, although it is not entirely clear, it appears that board members of providers that are not covered by the Centers for Medicare and Medicaid Services (CMS) mandate may be exempt from the State vaccination mandate if they rarely have in-person contact with staff or patients.

Specifically, the federal vaccination mandate applies to personnel, including volunteers, "[r]egardless of clinical responsibility or resident contact" and specifically references board members. The preamble to the regulation in the Federal Register specifically notes that the mandate applies to “other fiduciary board members”:

Regardless of frequency of patient contact, the policies and procedures must apply to all staff, including those providing services in home or community settings, who directly provide any care, treatment, or other services for the facility and/or its patients, including employees; licensed practitioners; students, trainees, and volunteers; and individuals who provide care, treatment, or other services for the facility and/or its patients, under contract or other arrangement. This includes administrative staff, facility leadership, volunteer or other fiduciary board members, housekeeping and food services, and others. We considered excluding individual staff members who are present at the site of care less frequently than once per week from these vaccination requirements, but were concerned that this might lead to confusion or fragmented care. Therefore, any individual that performs their duties at any site of care, or has the potential to have contact with anyone at the site of care, including staff or patients, must be fully vaccinated to reduce the risks of transmission of SARS–CoV–2 and spread of COVID–19.


86 FR 61555, 61570 (emphasis added); (see also, e.g., 42 CFR 483.80(i)).

However, the CMS Frequently Asked Questions (FAQs) provide that individuals who work exclusively remotely and do not have any direct contact with patients or staff are not subject to the vaccination requirement. Thus, it appears that a board member who either enters the organization's premises or attends off-site meetings with staff would be subject to the mandate, but a board member who never attends on-site or off-site events with provider staff would not be subject to the requirement.

Like the federal regulations, the New York State mandate applies to any personnel, including volunteers "who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease” (see Department of Health (DOH) FAQs). The requirement applies even if the personnel have no direct patient or resident contact. According to the State FAQs, volunteers are defined as "individuals who have a formal relationship with the covered entity and who provide regularly scheduled volunteer services." Examples of volunteers who are not subject to the vaccination mandate include "one-time or sporadically visiting volunteers and participants in the NYS Long Term Care Ombudsman Program." Thus, although the State regulation and FAQs do not explicitly refer to board members, it appears that board members are also covered by the State mandate, unless they are exempt or are one-time or sporadically visiting.

Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8383