Many Questions Remain about CMS and OSHA Vaccine Mandates

Posted on September 15, 2021 by Jonathan Lips

As part of a broad COVID-19 Action Plan released late last week, President Biden announced new vaccine mandates for workers across the country. The plan addresses several topics relevant to aging services, including preparation for the delivery of booster shots if approved and recommended by the FDA and CDC, and efforts to build the supply of rapid COVID tests, but the most prominent aspects of the White House plan relate to mandates.

Unfortunately, as was true when CMS first announced the nursing home mandate in mid-August, we are absorbing these policy announcements without the benefit of details about what specifically will be required and when. 

CMS Mandate Will Expand Beyond Nursing Homes
CMS announced that it will expand its planned mandate for staff vaccinations to include not only nursing homes but also other Medicare- and Medicaid-certified facilities and providers, including hospitals, surgical centers, home health agencies, hospices, and ambulance services. 

A key question about this announcement is whether the CMS mandate will apply to assisted living providers that accept Medicaid. CMS did not specifically identify providers that serve individuals through Medicaid waiver programs, such as Elderly Waiver. However, the breadth of the announcement shows CMS is seeking to extend vaccination as widely as it can among Medicare- and Medicaid-participating providers. Therefore, there is a distinct possibility that assisted living facilities and other home- and community-based service providers that serve Medicaid clients will be included in the requirement, but it is not certain. We will seek additional information but likely will not know which providers are included until CMS issues the rule.

OSHA Mandate Will Extend Beyond Healthcare to Cover All Employers
In a second significant development, OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated. Any workers who remain unvaccinated will be required to produce a negative test result on at least a weekly basis before coming to work. The agency will issue an Emergency Temporary Standard (ETS) to implement this requirement, which the White House noted will impact over 80 million workers in private sector businesses.

There are many outstanding questions on the forthcoming OSHA ETS, including how the Department of Labor will calculate the 100-employee threshold. According to LeadingAge, indications are that they will apply it on a company-wide basis rather than a per-location basis. We are still uncertain about how the rule will address remote workers, what types of testing will be allowed, and who pays for testing. There are additional questions on the timelines for implementation, how this interacts with existing union contracts, and more.

We will closely follow how this separate rule relates to and compares with the upcoming CMS vaccine mandate for healthcare providers. The OSHA rule will cover aging services providers not included in the CMS mandate if they fall over the 100-employee threshold. The existing OSHA COVID-19 ETS for healthcare providers issued in June 2021 remains unchanged and in effect.

Many Unknowns Remain
CMS stated that it will issue a rule in October to implement what the President announced. The timeline suggests the rule we were expecting for nursing homes in late September will now expand into a broader rule arriving in October. We anticipate OSHA will take several weeks to develop and issue the ETS, and we will provide additional information once it is received. We don't yet know how long affected businesses will have to comply after the CMS and OHSA rules are adopted.

Which accommodations or exceptions will be permitted under these rules is still unknown. The reference to testing as an alternative to vaccination in the portion of the White House announcement about an OSHA rule raises questions about whether that same flexibility will apply to healthcare providers. That remains an unknown, but we are advocating for that flexibility in the CMS rule.

LeadingAge Minnesota will continue to work as hard as possible to gather additional information and advocate while these rules are under development. We urge you to continue sharing your questions and concerns about the implications of expanding vaccine mandates. Please contact Jonathan Lips or any other LeadingAge Minnesota team member with your input about these critical issues.