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Federal rules require COVID-19 vaccination for more workers by Jan. 4 with no testing option for health care workers in Medicare and Medicaid facilities

November 10, 2021 15446

12/21/21 update: OSHA proceeds with COVID-19 ETS

Federal OSHA's COVID-19 Vaccination and Emergency Temporary Standard requiring COVID-19 vaccination or weekly testing for workers at larger employers across the U.S. is back in force with a Jan. 10 compliance deadline after a federal appeals court lifted an earlier injuction. Read the CDA article for details.

Nov. 15: Two federal rules issued last Thursday require more American workers be fully vaccinated against COVID-19 by Jan. 4, 2022. The rules support the pandemic plan President Joe Biden laid out in September and apply to workers at medium and large companies as well as to staff in health care settings that participate in the Medicare and Medicaid programs.

The new rule from the Centers for Medicare & Medicaid Services requires workers at certain facilities that accept federal Medicare or Medicaid funding to be fully vaccinated against COVID-19 by Jan. 4.

Weekly testing is not an option for health care workers at the estimated 76,000 facilities across the U.S. that receive Medicare or Medicaid funding.

The Occupational Safety and Health Administration’s new emergency temporary standard applies only to employers with 100 or more employees and therefore will not apply to dental practices in California unless they employ at least 100 workers across all practice locations. 

Both rules initially were expected to take effect later this year, but the Biden administration postponed compliance until after the holidays after receiving pushback from multiple business groups. 

In California as of Aug. 23, dental practices of all sizes should already be complying with the state’s vaccination and testing mandates. In some counties, dentists and staff should be complying with stricter local mandates that do not allow a weekly testing option. Dentists in California should also be aware that they are now permitted to apply for the requisite state laboratory licensure to administer waived tests, including certain rapid COVID-19 tests in the office. 

No weekly testing option for workers in specified Medicare and Medicaid settings

All clinical and nonclinical workers at specified health care facilities that receive federal funding from Medicare or Medicaid must be fully vaccinated against COVID-19 by Jan. 4 in compliance with the new Centers for Medicare & Medicaid Services rule.

CMS is imposing the rule in two phases: Phase 1 requires workers to have received the first dose of an FDA-approved vaccine series or a single dose of a single FDA-approved vaccine by Dec. 4. Phase 2 requires full vaccination by Jan. 4.

Workers at rural health clinics, federally qualified health centers, hospitals, long-term care facilities and other specialty providers must comply. The rule, however, will not apply to dental practices that are Medicaid providers or that are durable medical equipment providers under Medicare. 

Workers at these specified facilities do not have the option to show weekly proof of a negative COVID-19 test; however, facilities must permit exemptions based on recognized medical conditions or religious beliefs.

OSHA mandate requires vaccination or weekly testing

In compliance with the emergency temporary standard issued by OSHA, employers with 100 or more workers must ensure their workers either show acceptable proof of full vaccination against the coronavirus by Jan. 4 or test negative for COVID-19 once a week with a test that is cleared, approved or authorized by the Food and Drug Administration. 

As part of the rule, employers have until Dec. 5 to develop, implement and enforce a COVID-19 vaccination policy that provides the two options for workers with the requirement that unvaccinated workers wear face coverings at work. Face coverings are already required in health care settings and other certain settings in California, regardless of vaccination status.

Employers must remove from the workplace any employee who tests positive for COVID-19 and maintain records and a roster of each employee’s vaccination status.

OSHA states that as of Oct. 1, 324 COVID-19 tests and collection kits may be acceptable under the emergency temporary standard. As a result of CDA-sponsored legislation signed into law by Gov. Gavin Newsom, dentists who have received their CLIA certificate of waiver may also apply for the requisite California licensure to perform over-the-counter antigen tests in the dental office.

Although an appeals court on Nov. 4 temporary halted implementation of OSHA’s rule, CDA encourages affected employers, which include only those who are located at federal facilities, to proceed with developing a policy to comply by the Dec. 5 deadlines. 

Workers entitled to sick leave to recover from vaccine side effects

Employers complying with the OSHA rule must pay their workers for the time involved for testing and must provide sick leave for their workers’ recovery from any side effects of the vaccines. However, the rule does not require that employers pay for COVID-19 testing for workers who choose not to get vaccinated. 

Although OSHA will not enforce the rule in California, Cal/OSHA is required within 30 days of the rule’s publication (by Dec. 4) to adopt and enforce standards that are at least as effective as the federal standard. Dentists should expect to comply with Cal/OSHA’s updated ETS beginning in January and until the agency adopts a permanent regulation. CDA will publish details next month and provide members with updated resources in early January.

Frequently asked questions and fact sheets

The CMS has answers to frequently asked questions about the vaccination rule for health care workers. 

OSHA has fact sheets, FAQ and a recorded webinar about the rule affecting employers with 100 or more workers. 

CDA will remind members of upcoming deadlines and inform them of any developments with the federal rules.