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an. 4 is the COVID-19 vaccination deadline for employees in companies that have 100 or more workers, as well as for employees of long-term care facilities that participate in Medicare and Medicaid, according to two announcements made Thursday by federal agencies.

Timed to be released simultaneously were a widely anticipated emergency temporary standard issued by the Occupational Safety and Health Administration as well as a more stringent emergency regulation for long-term care and other healthcare facilities that participate in Medicare and Medicaid programs issued by the Centers for Medicare & Medicaid Services.

There will be a 60-day comment period on the regulations once it is published in the federal register, which is expected to happen today.

Unlike the OSHA emergency temporary standard, the CMS rule does not contain a testing alternative for affected workers. A first dose of a two-dose vaccine (Pfizer-BioNTech or Moderna) or the one-dose vaccine (Johnson & Johnson) will be required of workers before they provide any care, treatment or other services, CMS said. The CMS rule addresses healthcare and long-term care providers, including skilled nursing facilities, as well as home health agencies and hospice programs and other providers. It covers approximately 76,000 healthcare facilities and more than 17 million healthcare workers, according to the agency. 

The CMS rule can be stricter than the OSHA standard because CMS can condition payments based on compliance, former OSHA Director David Michaels, Ph.D., MPH, said Thursday during a webinar hosted by Axiom Medical. Businesses that don’t comply with the OSHA rule, however, may face “significant OSHA fines,” the Labor Department said.

Some industry advocacy groups are wary of the CMS regulation, however, fearing that it might go a step too far and could threaten an already challenged senior care workforce.

“While we support the overall intent of this CMS policy, we are concerned that the execution will exacerbate an already dire workforce crisis in long-term care. A hard deadline with no resources for providers or glide path for unvaccinated workers is likely to push too many out the door and, ultimately, threaten residents’ access to long-term care,” said Mark Parkinson, president and CEO of the American Health Care Association / National Center for Assisted Living.

Katie Smith Sloan, president and CEO of LeadingAge, said that the CMS policy “could further complicate staffing issues (including the prospect of additional departures) for our members who are already contending with longstanding workforce challenges exacerbated by the pandemic. We cannot overemphasize the need for staffing support and will continue to make our members’ needs known to the administration and to CMS.”

Under OSHA’s emergency temporary standard, U.S. companies employing 100 or more workers must develop, implement and enforce a mandatory COVID-19 vaccination policy unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
Employers must comply with most of the requirements of the OSHA standard within 30 days of publication and with testing requirements within 60 days of publication. OSHA is seeking comment as to whether the agency should adopt it as a final standard.