Gloved hand placing sign board next to vaccine shots and syringe.

(Credit: lakshmiprasad S / Getty Images)

Although generally supportive of federal COVID-19 vaccine mandates for members of its workforce, senior living leaders are concerned about the effects on its workforce.

The federal requirements for employers were announced in a flurry Thursday morning from the Department of Labor’s Occupational Safety and Health Administration and the Centers for Medicare & Medicaid Services.

OSHA’s vaccination and testing emergency temporary standard requires U.S. companies employing 100 or more workers to develop, implement and enforce a mandatory COVID-19 vaccination policy or adopt a policy requiring employees to undergo weekly testing and wear face masks in the workplace. The standard, which could become permanent, covers 84 million employees and is scheduled to be published in the Federal Register today.

Scheduling of the announcement coincided with an emergency regulation issued by CMS requiring long-term care and other healthcare facilities that participate in Medicare and Medicaid programs to develop workplace vaccination policies by Dec. 5, with all eligible workers required to be fully vaccinated by Jan. 4. This rule, which does not include a testing option for healthcare workers, covers more than 17 million workers at 76,000 healthcare facilities, including skilled nursing facilities.

In answers to frequently asked questions posted by CMS, the agency notes that the regulation will not apply to assisted living communities or group homes, nor will it apply to providers of home- and community-based services, because CMS does not have authority over them. The emergency regulation, however, notes that home health agency and hospice workers covered by the regulation often provide services in assisted living communities, and that assisted living residents are at risk of infection because workers in assisted living communities often work in more than one long-term care or healthcare setting where they can be exposed to the coronavirus.

On Sabra Health Care REIT’s third-quarter earnings call Thursday, President, CEO and Chair Rick Matros said that even though the CMS emergency regulation does not apply to senior living operators, “Our guess is that most of the senior housing providers will use that [regulation] as ‘cover,’ because a lot of them really want a mandate. So I think we’ll see more senior housing operators mandate anyway.”

Matros said that, based on Sabra’s experience, companies’ self-imposed vaccine mandates are not scaring workers away.

Assisted living communities and other settings not affected by the emergency regulation “may provide alternative places of employment for some of the staff currently working for providers and suppliers subject to this [interim final rule] who refuse vaccinations,” CMS notes in the emergency regulation. “On the other hand, staff shortages might be offset by persons returning to the labor market who were unwilling to work at locations where some other employees are unvaccinated and hence provide some risk, to those who have completed the primary vaccination series for COVID-19.”

American Seniors Housing Association President David Schless said it’s the industry’s goal to have as many residents and staff as possible vaccinated, and it “just makes sense to have a fully vaccinated staff.” Many senior living companies are “way ahead” of the federal mandates, he added. 

But staff retention is a real challenge.

“ASHA believes that given the two approaches to moving to a fully vaccinated workforce, the OSHA standard — which most senior living companies with over 100 employees will fall under — offers some reasonable flexibility by granting the option of weekly testing if staff chooses to not be vaccinated,” Schless told McKnight’s Senior Living. “This gives an operator the opportunity to retain the employee who otherwise might have quit over the mandate. It also provides an incentive to the employee to be vaccinated, given that the cost of the testing and required [personal protective equipment] can be passed on to the employee.”

In those settings where an operator falls short, weekly testing and masking is the next best — and most responsible — thing to do, Schless added.

National Center for Assisted Living Executive Director LaShuan Bethea said that assisted living communities and other residential care facilities are “deeply focused on encouraging our frontline workers to roll up their sleeves and get vaccinated to protect their vulnerable residents.”

She agreed with Schless that the weekly testing option for unvaccinated staff members embedded in the OSHA standard is important for the industry.

“Such flexibilities are a vital step to avoid further exacerbating the critical workforce shortage in long-term care,” Bethea said. 

LeadingAge President and CEO Katie Smith Sloan said that vaccine mandates make sense and help protect older adults. But she said she has concerns about how the CMS rule will affect the aging services workforce.

“Broad mandates that cover staff in all healthcare settings, including contract workers, also level the playing field among providers who are competing for in-demand workers,” Sloan said. “The 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”

American Health Care Association / NCAL President and CEO Mark Parkinson shared similar concerns about the CMS rule.

“While we support the overall intent of this CMS policy, we are concerned that the execution will exacerbate an already direct workforce crisis in long-term care,” he said. “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.”

Even a small percentage of staff walkouts due to the mandate would have a “disastrous impact” on the sector and its residents, Parkinson said. 

“Across the country, access to long-term care is becoming strained as providers have no choice but to limit admissions or even close their doors due to workforce shortages,” he said. “We hope to continue working with the administration to make the federal vaccine mandate successful while supporting our residents and caregivers.”

Combined, the OSHA and CMS rules, along with other previously implemented policies, mean that more than two-thirds of all U.S. workers are now covered by vaccination policies, according to senior administration officials. 

OSHA and CMS also clarified that the new rules preempt any inconsistent state or local laws, including those that ban or limit an employer’s authority to require vaccination, masks or testing.

OSHA said that employers found to be non-compliant with the rule may face a $14,000 penalty for a single citation. That penalty jumps to $140,000 for “willful violations.”