The Biden Plan Takes Wings - Feds issue OSHA and CMS vaccine guidance, update guidance for contractors
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The Biden Plan Takes Wings Feds issue OSHA and CMS vaccine guidance, update guidance for contractors LOCKTON CORONAVIRUS ADVISORY PRACTICE Nov. 10, 2021
Introductions, housekeeping Ed Fensholt, J.D.
SVP, Director,
and a bit of context Compliance Services
KC: 82489
A bit of context …
• The rise of the COVID-19 delta variant
− As of mid October 2021, in the U.S. alone:
▪ Over 44 million COVID-19 cases
▪ 3 million new COVID-19 related hospitalizations
▪ 720,000 COVID-19 deaths
LOCKTON COMPANIES | 3
A bit of context …
• Sept. 9: Pres. Biden announced plan to accelerate vaccinations of the unvaccinated
− Federal contractors: Vaccine mandate
▪ Guidance issued Sept. 24 and Nov. 4 (see our alerts here and here)
− Healthcare providers participating in Medicare/Medicaid programs:
Vaccine mandate
▪ Guidance issued by CMS on Nov. 5 (see our alert)
− Employers with at least 100 employees: Either mandate the vaccine or require
weekly proof of negative COVID-19 test
▪ Guidance issued by OSHA on Nov. 5 (see our alert)
▪ Federal appeals court imposes at least a temporary stay on Nov. 6, with highly
accelerated briefing schedule, suggesting quick decision on legality of the
OSHA mandate
LOCKTON COMPANIES | 4
Agenda
The OSHA mandate
Quick update on federal contractor guidance
Paula Day, VP, Director, HR Compliance Consulting
More on the OSHA mandate
Dr. Shealynn Buck, SVP, Medical Director
The CMS mandate (and a HIPAA nugget)
Ed Fensholt, SVP, Director, Compliance Services
Communications perspective
Julie Gibson, EVP, Director, Communications
Federal OSHA
Emergency Temporary Paula Day, J.D.
VP, Director
Standard HR Compliance Consulting
EFFECTIVE NOV. 5, 2021
OSHA ETS: Legal challenges
Current legal challenges in the Fifth, Sixth, Seventh, Eighth, Eleventh and District of
Columbia Federal Circuits
LOCKTON COMPANIES | 7
OSHA ETS: Federal vs. State
Federal OSHA State OSH plans
(private-sector employers) (private-sector and state and local
government workers)
• ETS is effective Nov. 5, 2021
• These states must notify Federal OSHA of
• Applies to the following states:
what action they plan to take within 15
Alabama Arkansas Colorado days and have 30 days (until Dec. 5) to
Connecticut Delaware District of Columbia adopt the federal OSHA ETS or alternative
Florida Georgia Idaho standards/regulations at least as effective
Illinois Kansas Louisiana as the ETS
Maine Massachusetts Mississippi Alaska Arizona California
Missouri Montana Nebraska Hawaii Indiana Iowa
New Hampshire New Jersey New York Kentucky Maryland Michigan
North Dakota Ohio Oklahoma Minnesota Nevada New Mexico
Pennsylvania Rhode Island South Dakota North Carolina Oregon South Carolina
Texas West Virginia Wisconsin Tennessee Utah Vermont
Virginia Washington Wyoming
LOCKTON COMPANIES | 8
OSHA ETS: The timeline
Dec. 5, 2021
Deadline for covered employers to
comply with all but testing
requirement.
Nov. 5, 2021 May 5, 2022
Date by which state OSH plans are to
Federal OSHA ETS Effective Date implement the federal standard or OSHA ETS six-month period expires
more stringent requirements.*
Nov. 20, 2021 Jan. 4, 2022
State-Plan states must notify OSHA of Federal OSHA ETS: Deadline for
intentions. employees to be fully vaccinated or
alternative testing begins
LOCKTON COMPANIES | 9
OSHA ETS: Are you a covered employer?
Meeting the 100-employee threshold:
• All employees across the U.S. regardless of where the work is performed and
vaccination status
• Remote, part-time, seasonal and temporary (not staffing) employees
• Not independent contractors
It does not matter at what point an employer has 100 or more employees:
1. An employer is covered for the duration of the ETS once it has 100 or more
employees
2. If the employer drops below 100 employees at any point after Nov. 5, 2021, the ETS
still applies for the duration of the effective period
3. If the employer does not reach 100 employees until after Nov. 5, 2021, the ETS
applies as of that date for the duration of the ETS
LOCKTON COMPANIES | 10OSHA ETS: Are you a covered employer?
SCENARIOS
01 02 03 04
FRANCHISES RELATED ENTITIES STAFFING AGENCIES MULTIEMPLOYER
Franchisor and franchisee are Two or more entities may be Only count the employees WORK SITE
separate entities for determining regarded as a single employer placed at host employer; host Each entity only counts their
applicability of the ETS. for purposes of OSHA if they employer does not count own employees.
handle “safety matters” as a staffing employees.
single company in which case
the employees of all entities
making up the integrated single
employer must be counted.
• How interrelated are the
entities?
• How have you responded to
prior OSHA inspections?
• How are current policies
developed?
LOCKTON COMPANIES | 11OSHA ETS: Which
employers are not covered?
• Workplaces covered by the federal
contractor vaccine mandate or the CMS
vaccine mandate
• Employers subject to OSHA’s Healthcare ETS
(but the employer may be covered by both
sets of ETS)
LOCKTON COMPANIES | 12OSHA ETS: Which
employees are not covered?
• Employees reporting to a workplace with no
contact with other workers or customers
• Remote workers who never work on-site or
meet with co-workers or customers
(periodically reporting to the work site would
trigger testing if the employee is not fully
vaccinated)
• Exclusively outdoor workers which have no
work time indoors other than de minimis
− Construction sites (sometimes, not always)
− Landscaping employees (so long as
employees do not share a vehicle)
LOCKTON COMPANIES | 13OSHA ETS: What is required?
BY DEC. 5, 2021:
• Establish a written policy on vaccination (mandate vaccine or testing alternative) or modify existing policy to
comply with ETS.
• Determine vaccination status of employees, obtain proof of vaccination, maintain records and compile roster
of vaccination status (including accommodation information).
• Provide employees with paid time off for vaccinations (4 hours per dose) and paid leave for reasonable
recovery of vaccine related illness (up to 2 days per dose).
• Require employees to provide notice of a positive COVID-19 test or COVID-19 diagnosis.
• Remove any employee testing positive for COVID-19 or diagnosed with COVID-19.
• Require employees who are not fully vaccinated to wear face coverings indoors or when in a vehicle with
another employee.
• Provide employees with information about the ETS; workplace policies/procedures; facts about vaccination
efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for
criminal penalties for knowingly supplying false documentation.
• Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient
hospitalizations within 24 hours.
• Make certain records available to employees and OSHA.
Multistate operations may potentially have varying requirements and deadlines.
LOCKTON COMPANIES | 14OSHA ETS: Required policy options
Option 1 Option 2
Mandatory Vaccination Policy COVID-19 Vaccination, Testing and
Face Covering Policy
Policy templates available here.
LOCKTON COMPANIES | 15OSHA ETS: Required policy options
A Mandatory Vaccination Policy must be in writing, identify the effective date and include the following:
• Require each employee to be fully vaccinated (including new employees as soon as practicable), other than
those employees:
− For whom a vaccine is medically contraindicated
− For whom medical necessity requires a delay in vaccination
− Entitled to a reasonable accommodation under the ADA or Title VII
[Policy must include information on weekly testing and face covering requirements applicable to these
employees]
• Information on determining the employee’s vaccination status, how the information will be collected and
the deadline
• Paid time and sick leave for vaccination purposes
• Notification of positive COVID-19 test and removal of COVID-19 positive employees from the workplace
• Identify the information to be provided to employees and how the employer is making that information
available
• Disciplinary action for employees who do not abide by the policy
• Procedures for compliance and enforcement
LOCKTON COMPANIES | 16OSHA ETS: Proof of vaccination
Proof should include: Proof of vaccination status
demonstrated by:
1. The employee’s name
• The record of immunization from a
2. The type of vaccine administered
healthcare provider or pharmacy
3. The date(s) of administration and • A copy of the COVID-19 Vaccination
4. The name of the healthcare Record Card
professional(s) or clinic site(s) that • A copy of medical records documenting
administered the vaccine the vaccination
• A copy of immunization records from a
public health, state, or tribal
immunization information system
• A copy of any other official
documentation that contains the type
of vaccine administered, date(s) of
administration, and the name of the
healthcare professional(s) or clinic
site(s) administering the vaccine(s)
LOCKTON COMPANIES | 17OSHA ETS: Proof of
vaccination
What if an employee states their vaccination
record is lost or stolen?
• The employee must attempt to obtain a copy
from their healthcare provider or the clinic.
• After an attempt is made to obtain a copy, an
employee may provide an attestation as a last
resort.
− Sample attestation
LOCKTON COMPANIES | 18OSHA ETS: When is paid time off required?
01 02 03
FOR COVID-19 SIDE EFFECTS FROM REMOVAL FOR COVID-19
VACCINATION VACCINATION POSITIVE TEST OR
• Up to four hours per dose • “Reasonable time” to recover DIAGNOSIS
(regardless of whether vaccine is from illness following dose
mandated) (two days is reasonable, but • Employee should work remotely
• Only applies for employees who get additional leave may be if possible
vaccinated during regular working required) • Paid time off is not required
hours
• Can require the use of existing
• This is in addition to existing paid sick pay or PTO • A collective bargaining
leave agreement may require paid
• Cannot require the use of time off
• No reimbursement for vacation pay to cover this time;
incidental costs rather, must provide sick time if • Employees should be permitted
• Not required to pay retroactively none accrued and unused to use accrued paid leave
NOTE: State or local laws may also require paid time off for one or more of these reasons.
LOCKTON COMPANIES | 19OSHA ETS: Face covering
requirement
• Compliance begins Dec. 5, 2021, for those employees
who are not fully vaccinated Exceptions:
• When an employee is alone
• A “face covering” must: in a room with floor to
− Completely cover the nose and mouth ceiling walls and a closed
door
− Be made of two or more layers of a breathable fabric
• For a limited time while the
that is tightly woven employee is eating or
− Be secured to the head with ties, ear loops, or elastic drinking at the workplace or
bands that go behind the head (gaiters can be worn for identification purposes
if they have two layers of fabric or are folded to make • When the employee is
two layers) wearing a respirator or
facemask
− Fit snugly over the nose, mouth and chin with no
large gaps • Where the employer can
show that the use of face
− Be made of a solid piece of material without slits, coverings is not feasible or
exhalation valves, visible holes, punctures or other creates a greater hazard
openings
LOCKTON COMPANIES | 20OSHA ETS: COVID-19 testing requirement
Unvaccinated employees who report to a workplace where there are
other individuals (or who interact with coworkers or customers outside
of the home) must be tested once weekly.
Unvaccinated employees must provide documentation of the most
recent COVID-19 test result no later than the seventh day following
the date the employee last provided a COVID-19 test result.
Unvaccinated employees who report to the workplace less frequently
than once every seven days must be tested for COVID-19 within seven
days of returning to the workplace and the employee must provide
documentation of the test to the employer.
LOCKTON COMPANIES | 21OSHA ETS: COVID-19 testing
• Testing begins Jan. 4, 2022, for employees who are not fully vaccinated.
• Employers are not required to pay for the testing (but may choose to do so) unless:
− Testing is offered as an accommodation.
− Applicable state law requires employers to bear this expense.
− Collective bargaining agreement requires employer to pay.
• It’s unclear whether employees must be compensated for time spent taking tests.
• Employers must maintain a record of each test result required to be provided by each
employee pursuant to this ETS or obtained during tests conducted by the employer —
keep these records confidential.
• Employees have a 90-day “pass” from testing after a positive COVID-19 test or
diagnosis.
• Accommodations may be required, if requested.
• In the event of testing supply issues or laboratory problems, OSHA will look at what
efforts employers made to comply.
LOCKTON COMPANIES | 22OSHA ETS: COVID-19 positive test
Employers must immediately remove from the workplace any employee who tests
positive for COVID-19 or is diagnosed with COVID-19 and keep the employee
removed until the employee:
• Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT)
following a positive result on a COVID-19 antigen test, if the employee chooses to
seek a NAAT test for confirmatory testing.
• Meets the return-to-work criteria in CDC’s Isolation Guidance.
• Receives a recommendation to return to work from a licensed healthcare provider.
NOTE: The ETS does not require that unvaccinated employees be removed from
the workplace if they’ve been in close contact with a COVID-19 positive person at
the workplace. Employers may, however, choose to do so and should follow state
and public health guidance for contact tracing.
LOCKTON COMPANIES | 23OSHA ETS: Reporting and recording requirements
• If an employer determines that a reported case of COVID-19 is work related, the employer
must record that information on the OSHA Forms 300, 300A, and 301, or equivalent.
• When evaluating whether a fatality or in-patient hospitalization is the result of a work-related
case of COVID-19, employers must follow the criteria in OSHA’s recordkeeping regulation for
determining work-relatedness. See this OSHA Fact Sheet for more details.
− An employer must make a report to OSHA within 24 hours of learning that (1) an employee
has been in-patient hospitalized due to a confirmed case of COVID-19, and (2) the reason
for the hospitalization was the result of a work-related exposure to the illness.
− An employer must make a report to OSHA within 8 hours of learning both (1) that an
employee has died from a confirmed case of COVID-19, and (2) that the cause of death was
the result of a work-related exposure to COVID-19.
• Employers have three options to report work-related fatalities and in-patient hospitalizations
to OSHA:
− By phone to the nearest OSHA Area Office
− By phone to the OSHA toll-free central number (1-800-321-OSHA)
− By electronic submission at www.osha.gov
LOCKTON COMPANIES | 24OSHA ETS – Recordkeeping
What records must a covered employer maintain?
• Roster: Identify each employee and record the employee’s vaccination status whether fully vaccinated, partially
vaccinated, not fully vaccinated because of a medical or religious accommodation, not fully vaccinated because they have
not provided acceptable proof of their vaccination status or unvaccinated.
• Proof of vaccination: Maintain copies (digital is compliant; should be readily accessible); keep a list of the aggregate
number of fully vaccinated employees at the workplace along with the total number of employees.
• Test results: Maintain records of each test result provided by each employee.
How should the records be treated?
• These are confidential medical records subject to retention for the duration of the ETS (not OSHA’s 30-year record
retention requirement).
• Comply with any applicable state law.
When is disclosure of records required?
• The roster must be available for inspection by OSHA within four business hours of a request.
• Employers must make an individual’s COVID-19 vaccine documentation available for examination and copying by the
employee (or anyone with the employee’s written authorized consent).
• Employers must make available to an employee or the employee’s representative the aggregate number of fully
vaccinated employees at a workplace along with the total number of employees at the workplace by the end of the next
business day following the request.
LOCKTON COMPANIES | 25OSHA ETS: Required notices
• Employers must provide specified information to employees regarding COVID-19
vaccine efficacy, safety and the benefits of being vaccinated in the written
vaccine policy (CDC Key Things to Know About COVID-19 Vaccines)
• OSHA Workers' Rights under the COVID-19 Vaccination and Testing ETS
• OSHA Information for Employees on Penalties for False Statements and Records
LOCKTON COMPANIES | 26OSHA ETS – Enforcement
The ETS is silent — What is likely?
• Inspections
• Worker complaints
Penalties for employer
• Standard penalty: $13,653
• Willful violation: $136,532
Penalties for employee
• Fines
• Imprisonment
LOCKTON COMPANIES | 27Federal contractor vaccine mandate update
• The deadline for federal contractors to be fully vaccinated is extended to Jan. 4, 2022.
• A covered contractor does not need to re-collect employee vaccination cards if it
previously obtained copies.
• There is no deadline by which covered contractors must review accommodation
requests, but unvaccinated employees should follow appropriate workplace safety
protocols and the appropriate agency should be notified of the presence of
unvaccinated employees at a federal work site.
• Covered contractors may need to offer temporary accommodations to contractor
employees who need to delay being vaccinated.
• Corporate affiliates of a covered contractor may fall within the scope of the vaccine
mandate depending on interrelated management and ownership.
• Covered contractor employees who refuse to be vaccinated and do not seek an
accommodation will not face automatic termination, but should be counseled and
educated, and addressed through other disciplinary measures before being
“removed” from the workplace.
LOCKTON COMPANIES | 28Testing and recordkeeping Shealynn Buck, MD
SVP, Medical Director
considerations
KC: 82489• Every 7 days is minimum
testing frequency*
ETS definition of
• Rapid antigen test method
is more feasible than pooled
COVID-19 test
or lab send-out PCR test
methods for most employers • Cleared, approved or authorized, including in an
• Antibody tests are not an Emergency Use Authorization (EUA), by the U.S.
option Food and Drug Administration (FDA) to detect
current infection with the SARS-CoV-2 virus
• OSHA estimates 8-27% of
(e.g., a viral test)
employees may require
testing over course of ETS • Administered in accordance with the authorized
period instructions
• Not both self-administered and self-read
unless observed by the employer or an
authorized telehealth proctor
• OSHA requires an independent confirmation of
the test to ensure the integrity of the result
*Unvaccinated employees with documented
CV-19 infection within 90 days do not test
LOCKTON COMPANIES | 30Test sourcing and administration
Options Pros Cons
Employer sources over-the- • Feasible for more structured workplaces • Sourcing and supply unpredictability
counter test kits and performs or • Better for workforces with testing access • Need trained and available staff to
proctors testing at workplace limitations (rural, no reliable transportation) perform/proctor
using employed staff or • Managing positive test results
contractor
Employer contracts with test • Feasible for more structured workplaces • Costly
vendor to source and perform • Employer doesn’t source or oversee testing • Limited vendor availability
testing at workplace or near-site • Better for workforces with testing access • Volume minimums
location limitations (rural, no reliable transportation)
Employee purchases authorized • Feasible for more structured workplaces • Sourcing and supply unpredictability
kits from retailer and brings to • Employer shifts all sourcing responsibility to • Employee may purchase wrong kit
workplace for employer to employee • Need trained and available staff to proctor
proctor • Managing positive test results
Employee purchases authorized • Employer shifts all sourcing responsibility to • Sourcing and supply unpredictability
kits from retailer that have employee • Employee may purchase wrong kit
telehealth proctor option • Employee can perform at home and positive test • Limited vendors
results occur outside of workplace • Requires app download, reliable Wifi, and video
conferencing capability
Employee schedules and obtains • Employer shifts all testing responsibility to • Employees who have testing access limitations
testing through retail pharmacy, employee • Testing not covered by health plan unless special
retail clinic or drive-thru testing • Widely accessible except in rural areas arrangements with plan administrator
site • Positive results immediately managed by
healthcare pros
LOCKTON COMPANIES | 31FDA EUA over-the-counter (OTC) rapid test kits
Non-healthcare employers can only purchase and perform OTC (retail) tests
Telehealth Purchase Bulk order
proctor option option option Other
BinaxNOW COVID-19 Antigen Home Test Yes Retail Yes
Yes (purchased
Voluntary recall of
Ellume COVID-19 Home Test separately through Retail Unknown
some lots
AZOVA)
Manufacturer
iHealth COVID-19 Antigen Rapid Test No Yes
Website
InteliSwab COVID-19 Rapid Test No Retail Yes
QuickVue At-Home OTC COVID-19 Test No Retail Yes
Retail
BD Veritor At-Home COVID-19 Test No Unknown
(Amazon only)
DiaTrust COVID-19 Ag Home Test Currently appears to not be available for purchase in U.S.
FlowFlex SARS-CoV-2 Antigen Rapid Test Currently appears to not be available for purchase in U.S.
LOCKTON COMPANIES | 32ER, urgent care and physician
offices are generally not feasible
Paying for testing for screening tests due to higher
cost and wait times.
Employer pays
• Testing performed by healthcare provider, retail pharmacy or retail clinic for
screening purposes is not standardly covered by health plan
• Employer purchases test kits through bulk ordering
• Employer contracts with on-site or near-site testing vendor
• Employer reimburses employee for purchased test kits or testing appointment
• Employer may be required to pay for testing per other laws, mandates or collective
bargaining agreements
Employee pays
• May present issues with employee relations, attraction or retention
• Use caution if considering payroll deduction
• Screening tests are FSA/HSA eligible
LOCKTON COMPANIES | 33Recordkeeping solutions
Contract terms
• Many are 12+ months; ETS is six months (may be extended)
• Implementation 2-8 weeks
Cost
• Wide range of fees – heavy implementation fees
• Cost rising with demand
Usability
• HCM/HRIS systems may be less expensive but are less user friendly than third-party
applications
− HCM/HRIS systems are not ideal for less tech-minded positions
• Integration with HRIS, Badge Scan, SSO, API
• Push notifications and communication automation
LOCKTON COMPANIES | 34Recordkeeping solutions
Reporting
• OSHA reporting available within 4 hours of request
• Employee reporting available within 24 hours of request
• Role-based access
Vaccine tracking and verification
• Verification by vendor, HR or other designated staff
• Verify all records or random
• AI verification, integration with state vaccine registries
• Exemption documentation, management and approval
LOCKTON COMPANIES | 35Edward Fensholt, J.D.
The CMS mandate SVP, Director
Compliance Services
KC: 82489The HIPAA issues with vaccination status
Not a HIPAA issue:
• For the employer to ask employees for proof of vaccination status
• For the employer to hire a vendor to ask employees for proof of vaccination status, or offer a portal for
employee to upload vaccination status, or for the employer to collect vaccination status information
from such a vendor
Is a HIPAA issue:
• For an insured employer to ask for vaccination status from the insurer
− If the insurer gives it, the employer has gone “hands on” its medical plan’s protected health
information (PHI), triggering an obligation on the part of the employer to put HIPAA privacy and
security policies in place for its medical plan
− Potential violation to use the PHI, without authorization, for the employer’s purposes
• For a self-insured employer to use the plan’s PHI to determine vaccination status for purposes of
complying with an employer obligation like a vaccination mandate
− Potential violation to use the PHI, without authorization, for the employer’s purposes
• HIPAA’s exceptions to general rule barring unauthorized disclosure/use of PHI:
− Averting a serious threat to public health and safety, and public health reporting and other public
health activities … do these apply? LOCKTON COMPANIES | 37The CMS mandate
Centers for Medicare and Medicaid Services (CMS)
• Part of cabinet-level Department of Health and Human Services (HHS)
• CMS overseas the Medicare and Medicaid programs (in addition to the Children's
Health Insurance Program (CHIP), and the state and federal ACA-created health
insurance marketplaces)
• Has authority to regulate healthcare providers participating in these programs, and
receiving federal healthcare dollars as a result
The vaccine mandate, in an “interim final rule,” applies to Medicare or Medicaid
certified providers and suppliers, essentially facilities that are subject to CMS health
and safety standards as a condition of participating in the federal programs
mentioned above … generally, Medicare and Medicaid-certified provider and
suppliers regulated under the Medicare health and safety standards known as
Conditions of Participation (CoPs), Conditions for Coverage (CfCs), or Requirements
for Participation
LOCKTON COMPANIES | 38The CMS mandate
The CMS vaccination mandate applies to:
• Hospitals (critical access, acute care hospitals, psychiatric hospitals, hospital swing beds, long term care
hospitals, children’s hospitals, transplant centers, cancer hospitals and rehabilitation hospitals/inpatient
rehabilitation facilities)
• Ambulatory Surgical Centers (ASCs)
• Hospices
• Psychiatric residential treatment facilities (PRTFs)
• Programs of All-Inclusive Care for the Elderly (PACE)
• Long Term Care (LTC) facilities, including Skilled Nursing Facilities (SNFs) and nursing homes
• Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs-IID)
• Home Health Agencies (HHAs)
• Comprehensive Outpatient Rehabilitation Facilities (CORFs)
• Clinics, rehab agencies and public health agencies providing outpatient PT and speech-language
pathology services
• Community Mental Health Centers (CMHCs)
• Home Infusion Therapy
• Rural Health Clinics (RHCs)/Federally Qualified Health Centers (FQHCs)
• End-Stage Renal Disease (ESRD) Facilities (i.e., dialysis)
LOCKTON COMPANIES | 39The CMS mandate
• The CMS vaccination mandate does not apply to:
− Physician offices
− Assisted living facilities, group homes and
similar settings
− Medicaid home and community-based services
− Schools receiving Medicaid funding
… but these entities might be subject to the OSHA emergency temporary standards.
• Similarly, the rules do not apply to:
− Religious Nonmedical Health Care Institutions (RNHCIs)
− Organ Procurement Organizations (OPOs)
− Portable x-ray suppliers
… but their staff might be indirectly subject to the CMS mandate if performing
services for an entity subject to the rule, under a contract.
LOCKTON COMPANIES | 40The CMS mandate
Who must be vaccinated?
• Staff, regardless of clinical responsibilities or patient contact, including employees,
licensed practitioners, students, trainees and volunteers
− Includes staff providing patient care off-site
• Physicians with admitting privileges at the facility
• Individuals providing care or other services for the facility under contract or other
arrangement (e.g., portable imaging vendors, but see the exception below)
Who gets a pass?
• Individuals providing services 100% remotely and have no direct physical contact
with patients or other staff
− E.g., telemedicine providers, payroll vendor, etc.
LOCKTON COMPANIES | 41The CMS mandate
When must staff and others be vaccinated?
• Subject to exceptions (for health and religious reasons):
− By Dec. 5: First vaccine dose administered
− By Jan. 4: Fully vaccinated (primary vaccination series)
− New staff: Must have received, at a minimum, a single-dose COVID-19 vaccine,
or the first dose of the primary vaccination series (for a multi-dose COVID-19
vaccine) prior to providing any care, treatment or other services for the provider
and/or its patient
• Temporary delays to these deadlines are allowed for individuals where appropriate,
e.g., a recent COVID-19 diagnosis
− There is no exception for individuals with COVID-19 antibodies
• Proof of booster shots is not required at this time
LOCKTON COMPANIES | 42The CMS mandate
• How does an individual prove vaccination?
− CDC COVID-19 vaccination record card (or a
legible photo of the card)
− Documentation of vaccination from a
healthcare provider or electronic health
record
− State immunization information system record
− If vaccinated outside of the U.S., a reasonable equivalent of any of the
previous examples
• The CMS rule preempts state vaccine rights laws
• A facility subject to the CMS rule and one or both of the OSHA rule and federal
contractors rule should follow the CMS rule
LOCKTON COMPANIES | 43The CMS mandate
What if a facility subject to the
mandate fails to comply?
• CMS could quash the facility’s
participation in the Medicare/Medicaid
program; some facilities may be subject
to monetary penalties (fines)
LOCKTON COMPANIES | 44Communications Julie Gibson
EVP, Director
perspective Marketing, Communications
and External AffairsEmployer considerations
• Make the decision that is right for your organization.
• Consider your client’s requirements — they have requirements that your teams will
need to meet?
• Introduce the infrastructure to support your process; make it clear to communicate
and simple to execute.
• This “why” is simple; every company is in the same position.
• Leave politics out of the workplace; focus on compliance and what is required
based on your organization.
• Never say “never” … your people won’t forget.
LOCKTON COMPANIES | 46Communicate, even when you don’t know
Sample language:
• OSHA has recently issued the new rules related to the COVID vaccine mandate for
employers
• We are preparing to comply with the recently passed OSHA ETS
• We have developed a plan that is right for our business
• What employees need to know:
− Any changes to existing policy
− The [process for providing proof of vaccine and/or weekly testing
− If there will be consequences for not complying
• If you have questions, please reach out to [contact]
LOCKTON COMPANIES | 47Educate. Advocate. OSHA ETS Workplace
Communicate. Communication:
Provide each employee with
information they can
understand about the
• Leverage your workplace influencers requirements of the ETS and
the workplace policies and
• Employee advisory council procedures established to
• Workplace educational campaign implement the ETS; vaccine
efficacy, safety and the benefits
• Utilize a variety of channels to continue to of being vaccinated by
reach people providing the Centers for
Disease Control and Prevention
• Prepare your managers; leader toolkits answer (CDC) document Key Things to
their questions first Know About COVID-19
Vaccines; protections against
• Coming together opportunity retaliation and discrimination;
• Find opportunities to create cultural moments and laws that provide for
criminal penalties for knowingly
supplying false statements or
documentation.
LOCKTON COMPANIES | 48Appendix
An existing statute may require the employer to
pay for COVID-19 testing as follows:
States in which payment for a COVID-19 test is likely required under existing laws
addressing medical exams: Arkansas, California, Colorado, District of Columbia,
Hawaii, Illinois, Kentucky, Louisiana, Maine, Minnesota, Montana, New Hampshire,
North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Utah, Vermont,
Virginia, West Virginia, Wisconsin, Wyoming
States in which it is unclear if an employer must pay for COVID-19 testing: New York,
Oregon
States in which payment for a COVID-19 test performed “due to exposure to a
hazard” is likely required: Nevada, New Mexico, South Carolina, Tennessee
States in which payment for a COVID-19 test is likely required for certain employees
only: Maryland (essential workers), Michigan (only for return to work after
LOA/furlough), Washington (common rail carriers only)
States in which payment for a COVID-19 test is likely required when an employer-
designated physician conducts the test: Massachusetts, New Jersey
States with no existing statute potentially covering COVID-19 testing: Alabama,
Alaska, Arizona, Connecticut, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Kansas,
Mississippi, Missouri, Nebraska, North Carolina, Texas
LOCKTON COMPANIES | 50Existing COVID-19 related paid leave laws
(As of Nov. 10, 2021)
States and Localities with current States and Localities with current
COVID-19 specific paid sick leave: COVID-19 paid time off for vaccine
requirements:
• Long Beach, CA
• Los Angeles County, CA
• Los Angeles County, CA
• Cook County, IL
• Oakland, CA
• Massachusetts
• San Francisco, CA
• Nevada
• Colorado
• New York
• Massachusetts
• Pittsburgh, PA
• New York
• Pittsburgh, PA
• Seattle, WA (Gig workers only) NOTE: A state or local general state
paid sick leave law would likely
cover a COVID-19 related illness.
LOCKTON COMPANIES | 51Independence changes everything. © 2021 Lockton Companies. All rights reserved.
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