CMS Healthcare Worker Mandate
The CMS Interim Final Rule (IFR) was issued on November 4th. It would require that covered facilities develop a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by a revised deadline of January 27, 2022. All eligible staff must have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by February 28, 2022. The regulation also provides for exemptions based on recognized medical conditions or religious beliefs, observances, or practices. Facilities must develop a similar process or plan for permitting exemptions in alignment with federal law.
While the rule clearly applies to IHS facilities, its application to the diverse array of Tribal facilities is less clear. After several discussions between Tribal leaders, organizations, and advocates, CMS updated its FAQ document to include the following information:
“Q: Does this requirement apply to Indian Health Service (IHS) facilities?
A: Generally, yes. Indian Health Service facilities are regulated under the CoPs, therefore the staff vaccination requirement outlined within this regulation applies. Certain Tribal FQHCs that do not participate in Medicare but only in Medicaid may not be subject to these requirements.”
We have been informed by CMS staff that a good way to confirm whether your facility is covered by the IFR is to visit CMS’ Quality, Certification, and Oversight Reports (QCOR) website and perform a search for your facility. We should note that laboratory-only facilities are not covered.
For more information on how and whether this mandate applies to your Tribal health facility, USET SPF strongly encourages you to contact your legal counsel.
OSHA Employer Mandate
On November 5, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) announced the publication of an Emergency Temporary Standard (ETS) requiring most employers with 100 or more employees to ensure their workers are fully vaccinated or tested for COVID-19 on a weekly basis. Employees will have to be vaccinated by January 4, 2022, while unvaccinated employees will be required to produce a negative COVID-19 test on a weekly basis and will be required to wear a mask in the workplace. Employers will also be required to provide paid time for their employees to get vaccinated.
Following a Tribal leader briefing, OSHA issued a response to the following question regarding the application of its employer vaccine mandate Emergency Temporary Standard (ETS) on Tribal Nation Enterprises—
“Question: Does the ETS apply to Tribally owned commercial enterprises?
Response: OSHA standards generally apply to Tribally owned commercial enterprises, but not to traditionally governmental Tribal activities. However, OSHA has decided not to enforce the Vaccination and Testing ETS at worksites owned by Tribes until after it completes the Tribal consultation called for by the January 26, 2021 Presidential Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships and Executive Order 13175. Therefore, OSHA will consult with the tribal officials as soon as possible to determine whether and how this emergency temporary standard applies to Tribal enterprises, and, where the ETS is applicable, provide additional time after that consultation for them to come into compliance.”
This hasn’t appeared, yet, on OSHA’s updated FAQ Sheet.