Will President Biden’s Emergency Vaccination-or-Weekly-Test Mandate Apply to Local Government Employers?

Published for Coates' Canons on September 23, 2021.

On September 9, 2021, President Biden announced a new COVID-19 Action Plan that included three items of interest to local government employers: 1) a directive that certain employers ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work; 2) a directive that requires certain employers to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination; and 3) a directive that requires vaccination of all employees of any healthcare organization (potentially including local health departments) that receives reimbursement from Medicare or Medicaid. The first two requirements will certainly apply to North Carolina local government employers. The third requirement may apply to local health departments. To learn what we know and don’t know as of now, keep reading.

Requirement That Employees Be Fully Vaccinated or Test Negative Weekly

At first blush, it seems as though the vaccination requirement will not apply to local government employers. But that doesn’t take into account the agreement that North Carolina has with the federal government about worker safety rules. Here’s how it will work:

  • President Biden has directed the federal Occupational Safety and Health Administration (OSHA) to develop a rule requiring all private employers with 100 or more employees to have all of their employees either be fully vaccinated or be excluded from work unless they test negative for COVID-19 on a weekly basis. OSHA will issue a new emergency temporary standard (ETS) that will implement the details of this directive. This rulemaking is similar to the rulemaking that produced the Healthcare ETS applicable to some local health departments and to emergency medical services in July 2021 (on the Healthcare ETS, see here).
  • Federal OSHA regulations do not apply to state and local government employees. But federal OSHA has an agreement with the North Carolina Division of Occupational Safety and Health (NC OSH) whereby NC OSH develops its own “State Plan” that covers both private and public sector employees. The NC OSH standards (or rules) must be the same as or “at least as effective as” the federal standard or rule (twenty-six other states and one U.S. territory also have State Plans). For more on State Plans, see here and here.
  • When federal OSHA issues this new ETS requiring vaccination or weekly testing, NC OSH will either adopt it in full or tweak it (but cannot make it weaker). The rule NC OSH adopts will apply to local governments. Whether the rule will only apply to local governments with 100 or more employees or whether NC OSH will extend it to cover all local governments is not yet known.
  • No other details about the vaccination or weekly testing requirement are known at this time. Local government employers should not expect to know much more before federal OSHA publishes the ETS on which NC OSH will base its own ETS.
  • It is hard to predict how long it will take federal OSHA to develop this rule. It took approximately six months to develop the Healthcare ETS, but it is unlikely to take as long to create this rule.

Paid Time Off for Vaccination and Vaccination Side Effects

President Biden also directed federal OSHA to develop a rule requiring private employers with 100 or more employees to provide employees with paid time off (PTO) to get vaccinated, as well as PTO for any absence from work that is due to side effects from vaccination. This will be integrated into the new ETS. In the commentary to the Healthcare ETS, OSHA said that it considered reasonable up to four hours of paid leave for the administration of the vaccine (unless it is offered on-site) and up to 16 hours of paid leave for side effects from the vaccination. The new vaccination-related ETS will likely reflect those same standards with respect to the amount of PTO that employers are required to provide. As described above, this new PTO requirement will become applicable to local government employers in North Carolina through NC OSH’s adoption of the same (or a more protective) standard or rule.

Required Vaccination of Healthcare Workers

It is unclear whether the rule relating to mandatory vaccination of healthcare providers receiving federal reimbursement will include local health departments and consolidated human services agencies. The third element of President Biden’s COVID-19 Plan directs the federal Centers for Medicare and Medicaid Services (CMS) to draft a rule requiring  that any healthcare organization receiving reimbursement from Medicare and Medicaid ensure that all its employees and volunteers are fully vaccinated. Unlike the new OSHA ETS for employers described above, this requirement does not contain the alternative of weekly testing for those who are not vaccinated.

All local health departments bill Medicaid for clinical services they provide to eligible residents. Some also include home health agencies. A very few are certified by CMS as federally-qualified health centers (FQHCs). In addition, some social services agencies provide mental health services that are billed to Medicaid. The President’s COVID-19 Plan says that the vaccination requirement will apply to

workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action builds on the vaccination requirement for nursing facilities recently announced by CMS, and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. These requirements will apply to approximately 50,000 providers and cover a majority of health care workers across the country. (Emphasis added).

The language in the COVID-19 Plan makes it sound as though local health departments (including those in consolidated human services agencies) will be included in this mandate. And note that the COVID-19 Plan says that even staff that do not provide direct patient or client services will be included in the vaccination requirement.

A press release from CMS, however, makes it sound as if application of the mandate could be more restrictive:

The Biden-Harris Administration will require COVID-19 vaccination of staff within all Medicare and Medicaid-certified facilities to protect both them and patients from the virus and its more contagious Delta variant. Facilities across the country should make efforts now to get health care staff vaccinated to make sure they are in compliance when the rule takes effect.

That’s in the first paragraph. In the last paragraph, CMS again uses the term “facilities.”

What is a facility? There is no overarching definition of the term “facility” in the Medicare and Medicaid statutes. Many people understand the term “facility” to mean a physical structure built to serve a particular purpose and this meaning is included in many common dictionary definitions, such as this one from the Merriam-Webster dictionary: “something (such as a hospital) that is built, installed, or established to serve a particular purpose.” The use of the term “facility” may therefore mean that local health departments that are not FQHCs will not be subject to the mandatory vaccination requirement as clinical health services are only a small part of the much larger purpose for which they are established.

On the other hand, on the CMS website, on a page focused on quality improvement, “facilities” are defined as:

any provider (e.g., hospital, skilled nursing facility, home health agency, outpatient physical therapy, comprehensive outpatient rehabilitation facility, end-stage renal disease facility, hospice, physician, non-physician provider, laboratory, supplier, etc.) providing medical services to beneficiaries.

Similarly, the second paragraph of the press release repeats the broad language found in the COVID-19 Plan:

. . . emergency regulations requiring vaccinations for nursing home workers will be expanded to include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs.

And in the fourth paragraph, the press release says, “. . . . CMS is using its authority to establish vaccine requirements for all providers and suppliers that participate in the Medicare and Medicaid programs.”

This means it is going to be “wait and see” for local health departments. CMS has projected that it will issue an interim final rule on this subject in October, so health departments may not have to wait too long. In the meantime, counties, health departments and consolidated human services agencies should prepare for the possibility that they may have to enforce a vaccination mandate in their local health departments. Presumably, religious and disability-based accommodations will be allowed, but for those who do not meet the requirements for accommodation, vaccination or termination may be the only alternatives.

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Topics - Local and State Government