Assisted Living Facilities Temporarily in a “Doughnut Hole” Regarding Federal Vaccine Mandates

Although highly anticipated rulemaking by the Centers for Medicare and Medicaid Services (CMS) and the Occupational Safety and Health Administration (OSHA) on November 4, 2021 to implement portions of the President’s COVID-19 Action Plan dealing with vaccine mandates for Medicare and Medicaid participating facilities (the “CMS Vaccine Mandate Rule”), and businesses having 100 or more employees (the “Vaccine ETS”), respectively, generally aligned with expectations, one notable surprise was an exemption from the OSHA Vaccine ETS for healthcare settings subject to the OSHA Emergency Temporary Standard for Healthcare issued on June 21, 2021 (the “Healthcare ETS”).

While the aforementioned exemption is logical given that both agencies worked closely together to ensure that the requirements of the CMS Vaccine Mandate Rule and OSHA’s Vaccine ETS were complementary and not overly duplicative, the effect of OSHA’s exemption in the Vaccine ETS for healthcare settings subject to the OSHA Healthcare ETS, places assisted living facilities (ALFs) in a doughnut hole where neither the CMS Vaccine Mandate Rule nor the OSHA Vaccine ETS applies to these facilities, at least temporarily.

As employers, ALFs, like the providers and suppliers covered by the CMS Vaccine Mandate Rule, are generally subject to OSHA standards and rulemaking. In fact, OSHA specifically stated in its commentary to the Healthcare ETS that ALFs are among the settings that are subject to its requirements.¹ While vaccination of employees is encouraged by OSHA in the Healthcare ETS, it is not mandated. Indeed, in the Vaccination ETS, OSHA states that it “does not have data to demonstrate that unvaccinated workers in settings covered by the Healthcare ETS face a grave danger from SARS–CoV–2 when the requirements of that standard are followed.”²  This is, undoubtedly, the reason for the carve-out of settings subject to the Healthcare ETS from the Vaccination ETS. While many of the other settings covered by the Healthcare ETS are picked up by the CMS Vaccine Mandate Rule, ALFs are not. This is because, broadly speaking, the CMS Vaccine Mandate applies to Medicare and Medicaid-certified providers and suppliers who are subject to CMS Conditions of Participation, Requirements for Participation or Conditions for Coverage. As a result, because ALFs are not subject to such requirements, CMS stated in a set of questions and answers released in connection with the rule, that it does not have regulatory authority over them and thus the CMS Vaccine Mandate Rule does not apply.

But the regulatory reprieve for ALFs from the Federal vaccine mandate may be illusory or, at most, temporary. Specifically, states with OSHA-approved State Plans³ may choose to adopt more protective occupational safety and health requirements than OSHA, though they will have to have those requirements in place within 30 days after publication of the Vaccine ETS in the Federal Register. The more likely scenario, however, is that ALFs will become subject to the Vaccine ETS if the Healthcare ETS is allowed to sunset on December 21 without being replaced with another rule. In fact, OSHA states in the Vaccination ETS that “if the Healthcare ETS were no longer in effect, OSHA would consider the workers who were covered by it, and who remain unvaccinated, to be at grave danger.”⁴ As a result, ALF providers should consider taking advantage of the time afforded them by the regulatory reprieve to begin planning for a future that includes a vaccine mandate.

[1] 86 Fed. Reg. 32376, 32562 (June 21, 2021).

[2] 86 Fed. Reg. 61402, 61421 (Nov. 5, 2021).

[3] There are presently 22 states with OSHA-approved State Plans.  See https://www.osha.gov/stateplans/.

[4] 86 Fed. Reg. 61402, 61421 (Nov. 5, 2021).