FAQs from Our CMS/ OSHA Vaccine Mandate Webinar

Regulation | November 19, 2021 | by Dee Pekruhn

On Thursday, November 11, LeadingAge held an all-member webinar on the recent CMS and OSHA ETS Vaccination Mandates. Below, we outline some of the commonly asked questions along with answers by our panel of experts. Note: because of the evolving nature of this subject, this article will be periodically updated. It is up to date as of Friday, November 19 2021.

We have organized the most commonly-asked questions and their answers into topical areas for each mandate issuer: OSHA or CMS. Please also refer to the robust online resources available from CMS and OSHA as the situation continues to evolve.

Vaccine Mandate Webinar FAQs

Non-Employee Questions:

Q: Can we require vendors and visitors to provide proof of vaccination? How are facilities to manage vaccination requirements, and more importantly, medical or religious exemptions, for staff that are not their employees?

A: The OSHA ETS is concerned exclusively with the relationship between employers and employees, and does not specify protocols for vendors, visitors, and other non-employees. To determine your responsibilities under the CMS interim rule, you must evaluate what type of services the vendor/ visitor is providing, who they are interacting with, where they are working, and how often.

Q: Do boards of directors need to be vaccinated? What about personal caregivers?

A: Under the OSHA ETS rule, board members are not considered employees, so they are not considered under this rule. The CMS rule does say board members have to be vaccinated; however, there may be some flexibility on this if board members never set foot in the certified setting and have no direct contact with residents or with staff. We are seeking further clarification on this matter. Remember that the rule also applies to other CMS-certified settings such as home health and hospice.

Q: Do temporary agency staff and private licensed practitioners have to be vaccinated?

A: Yes, CMS requires that they be vaccinated.

Q: Do grounds/ maintenance have to be vaccinated, if they are not in the building?

A: If they are using the same common areas (including bathrooms and break rooms,) or are interacting with staff in the certified setting, then yes, they will have to be vaccinated under the CMS rule.

Q: Are we still mandated to pay for time off due to a positive covid-19 diagnosis?

A: Employers subject to the OSHA Healthcare ETS are required to pay for time off due to a positive covid-19 diagnosis under certain circumstances. See OHSA ETS FAQs 73-77: https://www.osha.gov/coronavirus/ets/faqs

Q: What are your thoughts on contractors who work in your nursing home area doing renovations? Are we required to have them vaccinated to work in the building if it's in an area where residents live?

A: The OSHA ETS only considers employees of your organization, not contractors. The CMS rule would require that contractors be vaccinated if those contractors interact with staff or residents who work or live in the certified setting or use common areas where other staff or residents may be.

Q: Non-employees who come into the building whether contractors, vendors or personally hired care staff - when do they need to be vaccinated? Who is responsible for ensuring they are vaccinated?

A: The OSHA ETA considers only employees of your organization, not contractors, vendors or personally hired care staff. The CMS rule would require that contractors and vendors be vaccinated if they interact with staff or residents in the certified setting or use common areas where other staff or residents may be. Personally-hired care staff may or may not be required under the CMS rule, depending on the services they are providing and whether their services are provided under contract or arrangement with the certified setting.

CCRC/ LPC/ Campus:

· Q: The OSHA ETS-if we are a CCRC, do we only count independent living staff? Do we exclude skilled nursing and assisted living staff?

· A: We have asked for clarification from CMS. CMS states that all those who provide care to and interact with nursing home residents must be vaccinated. Also, if all community staff are interacting in the same bathrooms, break rooms, dining areas, and other common spaces, they must all be vaccinated. If you can clearly and completely separate your IL and/or AL staff from your nursing home staff, then you may be able to make a case (under the CMS rule) for not vaccinating those IL/AL staff members.

· Q: Are privately hired homecare required to be vaccinated?

· A: Under the new OSHA ETS, no, because they are not your employees. However, under the new CMS rule, the answer is probably yes. It depends who has hired the private aide – the SNF, or the family – and what that aide is doing. If you are documenting their work in your Care Plan, and if your nursing home has contracted with the private aide to provide care, then yes, you are responsible to ensure and document that they are vaccinated.

· Q: If you have a campus, where the assisted living building is on the other side of the campus away from the Senior HUD building, are the staff members in the HUD building required to be vaccinated OR is that the decision of the organization?

· A: Assisted Living is not covered under the CMS rule, so a HUD property with 100+ employees, in this scenario, must follow the OSHA ETS standard.

· Q: How do we get to 100 under the OSHA ETS?

· A: At a corporate level, you must count across all your sites. It is not a per site count of employees. If all your employees together meet or exceed 100, the OSHA ETS applies. For an LPC, the answer depends on whether the June OSHA ETS is renewed before it expires on December. Right now, AL is included in the June OSHA ETS requirements for healthcare providers. If it does expire without renewal, then LPCs may have to count their Assisted Living staff into their overall staff count for the November OSHA ETS. We are seeking clarification on this question.

· Q: What if each site has its own EIN?

· A: They look at it as “each employer” corporate wide. If the entity is a single entity, that’s what you count, even if you are affiliated with larger organization. Franchisees are separate entities; the franchisor can be a collective count of the corporate office.


· Q: Are employers expected to challenge medical or religion exemptions?

· A: Look at the EEOC guidance, it walks you through this. You are absolutely responsible for making sure the medical documentation meets CMS standards. CMS came out with a more stringent interpretation of medical exemption. For religious exemption requests, you can ask for more information if you don’t think the belief is sincerely held. You need to have a process in place and be consistent.

· Q: What about new staff that are not vaccinated? May they do onsite orientation is they are NOT providing care?

· A: Even if they are not providing care, they could be interacting with other staff, so the new staff will need to be vaccinated. A virtual training may be the acceptable alternative, until they are vaccinated.

· Q: Do new employees have to be fully vaccinated after Jan 4th deadline before they are hired?

· A: Yes, we can expect that the new employee will have to be fully vaccinated after the January 4th date before they can interact with residents or staff or provide services.

· Q: Should a provider halt admission if there are significant staff losses and go below required staffing?

A: You must have staffing plan anyway as part of emergency planning. Refer to that plan and update it now for this rule. It is stated in the rule that fully vaccinated staff may come in to supplement shortages. You still need to talk to public health department about when to halt admissions or increase discharges to stay in compliance.

· Q: How do we proceed with staff that are minors?

A: CMS, we have asked for clarification. No other info at this point.

· How do the rules apply to new hires?

· A: The OSHA ETS would apply to new hires if your organization employs more than 100 staff members. The CMS rule would apply to new hires to be fully vaccinated by the January 4th 2022 deadline or upon their first day of training or working on site after the January 4th deadline.


· Q: Can you discuss the ability to charge employees who have turned in a medical or religious exemption for the cost of testing? We've seen mixed answers from YES as it presents a burden on the employer to NO because it is a requirement of employment, much as a physical would be.

· A: CMS doesn’t say anything about costs of testing. Regardless of what CMS says, in your nursing home setting you are required to test unvaccinated staff under a different rule that still exists. For the OSHA ETS, if you have a policy where testing is an ‘option’ for the unvaccinated, you can pass that cost on to your employee. When you have a vaccine [mandate] policy, and you are allowing a reasonable accommodation under a medical or religion exemption, then you have to be mindful about passing those costs to employees. You can’t treat them differently, vis a vis charging for a test, than those who are not required to be tested. It’s best to consult your general counsel or legal advisor before making a final decision on whether to charge your employees for testing.

Documentation/ Compliance:

· Q: Do we need a written process for tracking and documenting? Are we required to have copies of vaccination cards of all employees? Will a list of vaccinated be adequate?

· A: Yes, you must have a written policy for each of the 10 processes required by the new CMS rule. CMS is clear that proof of vaccination can be the vaccination card, a copy of medical records showing vaccination, or the state immunization registry. If vaccination happened outside of US, the international equivalent is acceptable.

· Q: Does the vaccination card have to be validated?

· A: CMS doesn’t get that detailed. We suggest that if the vaccination card doesn’t look legitimate, have it checked out.

· Q; For Hospice Staff entering a nursing home – do we have to look at the vaccination card every time and verify?

· A: You must have a record for all of your contracted staff, volunteers, and etc. You can have a personnel record for all individuals or a provider agreement with that person’s organization. In that scenario, you don’t have to check it every time. However, if someone comes one time and is covered under CMS, you have to check that one on site that time.

Q: Do we have to have copies of vaccination cards for all employees? what would proof of vaccination include for a contracted worker? can the contract require the vaccination without other proof or documentation provided to the facility? Do policies and procedures have to be in writing?

A: Under the CMS Rule, for employees, you can have either a copy of the vaccination card, a copy of medical records showing vaccination, or check with state immunization registry. You must have a record for all of your contracted staff, volunteers, and etc. You can have a personnel record for all individuals or a provider agreement with that person’s organization. In that scenario, you don’t have to check it every time. However, if someone comes one time and is covered under CMS, you have to check that one on site that time.

Q: If we are already following the prior OSHA ETS guidelines as healthcare (AL), do we also follow the new OSHA ETS? Some folks are saying you don’t follow both, either the old ETS or the new ETS.

A: Providers that are subject to the June 2021 OSHA Healthcare ETS are exempt from complying with the OSHA Vaccination and Testing ETS. The OSHA Healthcare ETS is set to expire on December 20, 2021, so some providers may at that point be subject to the OSHA Vaccination and Testing ETS. See FAQs – 2.J. and 2.K.: https://www.osha.gov/coronavirus/ets2/faqs


Q: Will Leading Age be able to provide sample or templates for the required P&Ps that meet the requirements?

A: Yes. Here are sample templates for the OSHA ETS (one for vaccination mandate and one for mandate or testing option): https://www.osha.gov/coronavirus/ets2. Here is a sample OSHA policy from the Health Action Alliance: https://www.healthaction.org/resources/vaccines/sample-covid-19-vaccination-policy. For compliance with the CMS rule, check out this COVID-19 Vaccine Policy template (LeadingAge login required to access) and this resource for ensuring you've covered all 10 of the required processes in your policies and procedures.