Vaccine mandate status update

Since the Occupational Safety and Health Administration (OSHA) and CMS released the original versions of their mandates, they have met significant resistance, landing both in the hands of the U.S. Supreme Court. The U.S. Supreme Court is set to hear arguments for the OSHA Vaccination and Testing Emergency Temporary Standard (ETS) and the CMS Vaccination Mandate for Health Care Workers this Friday, Jan. 7, 2022. The future of the mandates will be determined in the case, either allowing the agencies to move forward with enforcement of their COVID-19 vaccination mandates or bringing them to an end for now.

At the moment, the CMS vaccination mandate is NOT IN EFFECT in Iowa due to the state’s participation the Missouri injunction case. The OSHA ETS is in effect after several delays across the nation, with the first deadline noted as Jan. 10, 2022. Additionally, with the expiration of the June health care ETS, health care providers are now subject to this mandate. IHCA encourages its members to be prepared for the possibility that the mandates will go into effect after the Supreme Court reaches a conclusion. To prepare, IHCA recommends the following action items for compliance:

For skilled nursing facilities, nursing homes and Medicaid-certified residential care facilities:

• The CMS vaccination mandate will affect all facilities that participate in Medicare and Medicaid services. Surveying for compliance will begin Jan. 27, 2022, and will be conducted during annual, initial or complaint surveys. Review the CMS QSO-22-07-ALL, Attachment A for LTC Facilities, and FAQs.
  • Develop a policy and procedure that identifies how the facility will:
    • Ensure all staff are vaccinated for COVID-19 with the primary series.
    • Offer employees the opportunity to request a medical or religious exemption.
    • Provide additional infection control measures for employees who are unvaccinated, have a delayed timeline for vaccination or are partially vaccinated and awaiting subsequent doses.
  • Develop a plan to request, collect, track and secure COVID-19 vaccination documents for employees, including contracted staff and volunteers.

• The OSHA mandate will affect facilities or organizations that employ greater than 100 individuals. If a facility is meeting the expectations set forth in the CMS vaccination mandate, OSHA vaccination components are met. Compliance efforts will begin Jan. 10, 2022, for all elements of OSHA’s ETS except for employee testing. The second deadline of Feb. 9, 2022, requires weekly testing of unvaccinated employees. Facilities are already testing employees per CMS rules, therefore no further action is required to meet compliance expectations. Other elements of compliance require:
  • Providing reasonable time away from work (four hours) for employees to become vaccinated or for side effects of the vaccination.
  • Reporting COVID-19 related hospitalizations and deaths to OSHA.
  • Providing information to employees about the OSHA ETS, the CDC webpage titled Key Things to Know About COVID-19 Vaccines, information about protections against retaliation and discrimination and information about laws providing criminal penalties for knowingly supplying false statements or documentation.

For assisted living programs and residential care facilities that are NOT Medicaid-certified:

• The CMS vaccination mandate does not apply to free-standing assisted living programs. Assisted living programs should determine if their employees are subject to the CMS mandate through their relationship with an adjacent or related nursing facility or other entity. If a program determines that their employees are subject to compliance, follow the action items above for nursing facilities.
• The OSHA mandate will affect programs that employ greater than 100 individuals. To prepare for compliance:
  • Develop a policy and procedure that identifies how the facility will:
    • Ensure all staff are vaccinated for COVID-19 with the primary series.
    • Offer employees the opportunity to request a medical or religious exemption.
    • Require that all unvaccinated employees wear a mask while at work.
    • Require employees to notify the employer of a positive COVID-19 test.
    • Remove employees from the workplace who have a positive COVID-19 test and keep them removed until they meet criteria for return.
  • Provide information to employees about the OSHA ETS, the CDC webpage titled Key Things to Know About COVID-19 Vaccines, information about protections against retaliation and discrimination and information about laws providing criminal penalties for knowingly supplying false statements or documentation.
  • Develop a plan to report COVID-19 related hospitalizations and deaths to OSHA.

For home health providers:

• The CMS vaccination mandate will affect all agencies who participate in Medicare and Medicaid services. Surveying for compliance will begin Jan. 27, 2022, and will be conducted during recertification, initial or complaint surveys.
  • Develop a policy and procedure that identifies how the agency will:
    • Ensure all staff are vaccinated for COVID-19 with the primary series.
    • Offer employees the opportunity to request a medical or religious exemption.
    • Provide additional infection control measures for employees who are unvaccinated, have a delayed timeline for vaccination or are partially vaccinated and awaiting subsequent doses.
  • Develop a plan to request, collect, track and secure COVID-19 vaccination documents for employees, including contracted staff and volunteers.
  • Members can review the Home Health appendix here and should be familiar with the survey process that begins on page 9, as to all the policies and processes that you should have in place.

• The OSHA mandate will affect facilities or organizations that employ greater than 100 individuals. If an agency is meeting the expectations set forth in the CMS vaccination mandate, OSHA vaccination components are met. Compliance efforts will begin Jan. 10, 2022, for all elements of OSHA’s ETS except for employee testing. The second deadline of Feb. 9, 2022, requires weekly testing of unvaccinated employees. Other elements of compliance require:
  • Providing reasonable time away from work (four hours) for employees to become vaccinated or for side effects of the vaccination.
  • Reporting COVID-19 related hospitalizations and deaths to OSHA.
  • Providing information to employees about the OSHA ETS, the CDC webpage titled Key Things to Know About COVID-19 Vaccines, information about protections against retaliation and discrimination and information about laws providing criminal penalties for knowingly supplying false statements or documentation.

Additional resources

IHCA/ICAL/ICHC has developed several tools to assist members in their understanding and implementation of these mandates. These tools can be found on IHCA’s COVID-19 Resources webpage and are listed below:

• IHCA/ICAL/ICHC Vaccination Mandate Guidance Summary
• Vaccination Policy and Exemptions Toolkit

With the recent inclusion of health care employers into the OSHA Vaccination and Testing ETS, providers may be seeking more information on compliance measures. Members are encouraged to participate in AHCA’s webinar entitled “OSHA’s Vaccine and Testing Mandate Now Applies to LTC: Find Out What Steps to Take Before the Jan. 9 Effective Date.” The webinar will take place Friday, Jan. 7, at 2:00 p.m. Register here.

For questions, contact Brenda Irlbeck, VP, Quality Improvement and Clinical Affairs, at 515-978-2204.