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Vaccination

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The Centers for Medicare and Medicaid Services (CMS) has released guidance on the Omnibus COVID-19 health care staff vaccination interim final rule that was published on November 5, 2021. The emergency regulation helps safeguard health care workers and the people they serve from COVID-19 and its variants for all individuals seeking care. This is done by imposing requirements regarding vaccinations for eligible staff at health care facilities participating in the Medicare and Medicaid programs.

This guidance provides important information on implementation as well as guidelines to assess and maintain compliance with the COVID-19 vaccination requirements for health care workers at facilities participating in the Medicare and Medicaid programs.

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This fall, the National Alliance for Direct Support Professionals announced that it would be conducting a comprehensive campaign across the country to address COVID-19 vaccine hesitancy among direct support professionals. This initiative is part of a cooperative agreement with the Association of University Centers on Disabilities (AUCD), funded by the Centers for Disease Control and Prevention (CDC).
During this year-long campaign, NADSP is launching a variety of outreach activities including fact sheets, blogs, podcasts, and the production of public service announcements (PSAs).

In November, NADSP’s Director of Educational Services, John Raffaele, worked with filmmaker Jerry Smith and producer Pete McCauley of the Institute on Community Integration at the University of Minnesota to capture some important and thought-provoking conversations.

This video is the first of many PSAs featuring DSPs, family members, and people receiving supports who shared varying perspectives on COVID-19 vaccination. Uwvie Obodo, a direct support professional at the Center for Family Support  in New York City, shares his experience below.

To learn more about John’s experiences during the first phase of filming, and the new insight he gained into why 26% of DSPs remain unvaccinated, visit the “Read More” section.

COVID-19 Webinars

Since the onset of COVID-19, NADSP has hosted a number of webinars about the pandemic — specifically covering its relationship to the role and responsibilities of direct support professionals.

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Message from Gibbel Kraybill & Hess LLP:

On Friday evening, the Sixth Circuit lifted the stay on OSHA’s Emergency Temporary Standard (ETS). The ETS states that any employer with more than 100 employees must require its employees to either show proof of a COVID vaccination or submit to weekly testing and mask at all times when indoors. In the absence of a Supreme Court ruling to the contrary, the ETS will go into effect, and employers will be required to adhere to its standards. Read the article here.

GKH attorneys are closely monitoring the COVID-19 crisis and will continue to post updates and resources for individuals and businesses.

View Resources Here

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Businesses Left in Limbo on COVID-19 Mandate
Excerpts from: The Hill, November 10, 2021

Businesses are in limbo after a federal court halted the Biden administration’s vaccine-or-test mandate for private employers.  

Employers are preparing to enforce the Occupational Safety and Health Administration’s (OSHA) rule, which would require businesses with 100 or more employees to mandate COVID-19 vaccinations or weekly testing by Jan. 4.

But it’s now unclear whether the requirement will survive legal challenges after the 5th U.S. Circuit Court of Appeals temporarily blocked the rule over the weekend, creating confusion among companies on how to move forward. Labor lawyers are urging businesses to continue preparing for key OSHA deadlines, given that the court’s stay, for now, is only temporary.

“I think it’s prudent for employers to proceed with planning assuming that the OSHA rule, at least in some form or fashion, will be implemented pending final resolution of the various court cases,” said Michelle Strowhiro, a lawyer at McDermott Will & Emery who advises businesses on COVID-19 employment issues.

While the OSHA rule requires businesses to mandate weekly testing for unvaccinated employees by January, the most important deadline is coming up soon. By Dec. 5, employers must collect employees’ proof of vaccination and provide paid leave for those getting the shot, while unvaccinated employees must begin wearing a mask. 

The risks are high for businesses banking on the rule being overturned. Employers that don’t comply face fines of up to $136,532 for willful violations. 

“Employers should be keeping one eye on the courts and one eye on taking the steps necessary to comply with the regulation by the time it comes into effect in early December so that they’re not caught flat-footed,” said Evandro Gigante, an employment attorney at Proskauer Rose LLP. 

Large companies that don’t already track their employees’ vaccination status are scrambling to adopt systems to verify that information ahead of the December deadline. They’re also crafting rules that lay out religious and disability accommodations and the penalties for employees who don’t comply with the OSHA requirement. 

The OSHA rule has already drawn a flurry of lawsuits from GOP-led states and conservative interest groups. Following a challenge from Texas, Louisiana, Mississippi, Utah and South Carolina, the 5th Circuit temporarily halted the rule Saturday, citing “grave statutory and constitutional issues.”

The OSHA rule has been challenged in several different circuit courts, and the cases will likely be combined into one and sent to a federal appeals court as soon as next week. Experts say the lottery will probably send the case to a less conservative court than the 5th Circuit, which previously allowed Texas’s controversial six-week abortion ban to remain in effect.

Whichever side loses the case is expected to appeal to the Supreme Court, which has a 6-3 conservative majority. Labor lawyers largely believe that the OSHA standard is constitutional, and they note that it is less strict than other federal vaccine mandates for health care workers and federal contractors. However, it’s still unclear whether the rule would survive the high court. 

In the meantime, the Biden administration is urging large employers to move forward with workplace vaccine requirements as it fights to protect its rule in court.

Private vaccine mandates have steadily grown more popular throughout the pandemic. Several companies, including United Airlines and Tyson Foods, have already enacted their own vaccine requirements that are far stricter than the minimum OSHA standard.

An October survey from consulting firm Mercer found that 34 percent of employers — made up mostly by businesses with 100 or more employees — currently have some form of vaccine mandate in place.

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The Center for Medicare & Medicaid Services (CMS) has released a one-page overview titled “COVID-19 Vaccination Requirement for Health Care Providers and Suppliers.” The one-pager gives an overview of the facilities and organizations that are required to participate in the vaccine mandate as well as guidance for meeting the standards and the enforcement process.

RCPA continues to engage with the Department of Human Services (DHS) and the Governor’s office on Pennsylvania specific recommendations and guidance as it relates to this mandate. We will continue to apprise members of any changes or state specific implications.

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