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CMS & OSHA Vaccine Rules Are Here!

Posted by Margaret Scavotto & Scott Gima on 11/11/21 11:07 AM

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In the past few days, CMS published an interim final rule addressing COVID-19 vaccination for health care staff, and OSHA issued an emergency temporary standard (ETS) on COVID-19 vaccination and testing. Here's the details (and status) of both:

CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule

*Status update: On November 10th, ten states sued to block this rule – stay tuned for updates.

Here are some fast facts about the rule:

  • Healthcare providers that are Medicare- or Medicaid-certified must establish a policy ensuring eligible staff receive the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-vaccine prior to providing any care, treatment or other services by December 5, 2021. All staff must receive the necessary shots to be FULLY vaccinated by January 4, 2022. A booster is not required to be “fully vaccinated.”
  • Pfizer, Moderna, and Johnson & Johnson vaccines may be used.
  • Exemptions for recognized medical conditions or religious beliefs remain. There is no testing exemption for unvaccinated individuals.
  • The vaccination requirement applies to current and new employees, licensed practitioners, students, trainees, and volunteers, as well as individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements.
  • The requirements DOES apply to staff who work offsite (for example, in patient homes). It does NOT apply to individuals who work 100 percent remotely and have no direct contact with patients and other staff.
  • The regulation does NOT require testing for unvaccinated individuals. CMS requires providers to implement additional precautions for unvaccinated staff. CMS stated accommodations may be (but are not limited to) testing, physical distancing and source control.
  • Penalties for noncompliance include: civil monetary penalties; denial of payment; and termination from the Medicare and Medicaid programs. 

OSHA's ETS on COVID-19 Vaccination and Testing

OSHA issued an emergency temporary standard (EST) on COVID-19 Vaccination and Testing (29 CFR Subpart U, 86 FR 32376).

*Status update: The ETS was scheduled to take effect November 5, 2021, but this has been put on hold by a 5th Circuit judge.

The ETS addresses vaccination as follows:

  • Employers with 100 or more employees must require vaccination OR face coverings and weekly testing for unvaccinated individuals who do not have an exemption. This ETS goes into effect November 5, 2021, and then employers have 30 days to comply with all requirements except testing – testing requirements have an additional 30 days (until January 4, 2022). Employees must have their final vaccine dose by January 4 (this timeline imitates the CMS rule)
  • The face covering requirement applies to working indoors, or when in another vehicle with another person. Employers cannot prevent anyone from wearing a face covering unless it creates a serious workplace hazard.
  • Employers are NOT required to pay for testing costs.
  • Employers must determine the vaccination status of each employee, obtain proof of vaccination, maintain these records, and keep a roster of vaccination status.
  • Employers must provide reasonable time off (up to four hours of paid time for each dose) and paid leave for employee vaccinations and side effects (with some exemptions)
  • Employers must require employees to provide notice of a positive COVID-19 test or diagnosis; immediately remove COVID-19 positive employees from the workplace REGARDLESS of vaccine status; and keep removed employees out of the workplace until they meet criteria for returning.
  • Employers must provide the following information to employees in a language and at a literacy level they understand:
    • Information about the ETS and workplace policies implementing it
    • The CDC document: “Key Things to Know about COVID-19 VACCINES”
    • Information about protections against retaliation and discrimination
    • Information about laws that provide for criminal penalties for knowingly suppling false statements or documentation
  • Employers must report work-related COVID-19 fatalities to OSHA within 8 hours; in-patient COVID-19 hospitalizations require 24-hour notice.
  • Employees must make available records of vaccine documentation and test results.
  • Employers must make available to employees the aggregate number/% of fully vaccinated employees at the workplace.

If you fall under both the CMS rule and OSHA, follow the stricter CMS rule first.

Margaret signature 2021-1


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Topics: guidance, compliance, COVID-19

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