Do the new federal vaccine mandates apply to EMS?

By Steve Wirth, Esq; and Doug Wolfberg, Esq.; Page, Wolfberg & Wirth, LLC

On Nov. 5, 2021, the federal government issued two new rules to help minimize the risk of COVID-19 transmission in the workplace:

• The OSHA COVID-19 Vaccination and Testing: Emergency Temporary Standard
• CMS Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination

Both rules became effective immediately, with most compliance deadlines on or before Jan. 4, 2022. While these rules on their face have limited application to ambulance services and EMS agencies, the ripple effect of these rules may nevertheless create obligations for EMS.

The OSHA ‘Vaccinate or test’ Emergency Temporary Standard

The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) which establishes binding requirements to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 in the workplace. The ETS essentially requires large employers to develop, implement and enforce a mandatory COVID-19 vaccination policy with an exception for employers who chose to allow employees to undergo weekly COVID-19 testing and required mask wearing instead.

The ETS also requires employers to provide limited paid time off for employees to get vaccinated and to provide limited paid time off to recover from any side effects of vaccination.

Ambulance services and EMS agencies will be impacted on a limited basis under this new rule, as the rule does not apply in settings where an employee provides healthcare services while covered under OSHA’s previously issued Healthcare ETS – which does not mandate vaccination. Most EMS agencies are covered under the Healthcare ETS issued this past June.

The Healthcare ETS already requires a multitude of protections for employees, including patient screening and management, facemasks or respirators, other personal protective equipment, limiting exposure to aerosol generating procedures, physical distancing, physical barriers, cleaning, disinfection, ventilation, health screening and medical management, access to vaccination, and medical removal protection.

OSHA stated that because of the protections under the HealthCare ETS, including the fact that most healthcare workers already have a high rate of vaccination, and that many are subject to vaccination mandates by their employers, that the added “vaccinate or test” requirements for healthcare workers were not necessary while they are covered by the Healthcare ETS standard’s protections.

However, the new ETS may have application to EMS employees who work in non-healthcare settings, which may create compliance issues for EMS agencies. That is because the exception for healthcare employers covered under the Healthcare ETS is limited to employers which provide healthcare services in healthcare settings – where there is a reasonable expectation that persons with suspected or confirmed COVID-19 will be present. This means that for EMS agencies with 100 or more employees who have separate non-healthcare settings – such as billing, administration, education or dispatch centers – the new ETS vaccinate or test mandate may apply to those employees.

This could create a bit of an absurd result – where larger EMS employers may not need to implement mandatory vaccination or weekly testing for frontline EMS practitioners – yet they may need to implement those very requirements for employees who work in separate non-healthcare settings who do not even see patients who may have COVID-19.This is an important issue that hopefully OSHA will address at the conclusion of the 30-day comment period.

Under the new ETS, covered employers must implement a mandatory vaccination policy or require employees to wear face coverings and submit to weekly COVID-19 testing. If not fully vaccinated, the employee cannot work unless tested at least once every seven days. The test cannot be self-administered or read by the employee unless directly observed by the employer. To encourage employees to get vaccinated, OSHA will not require employers to pay for the costs of the weekly testing if the employee chooses not to get vaccinated, unless the employee is unable to be vaccinated is due to a disability or sincerely held religious belief protected under the anti-discrimination laws.

CMS issues mandatory vaccination rule – with no testing alternative

CMS also issued its own mandate for requiring COVID-19 vaccination for healthcare employees who are employed by specific facilities that are regulated under the Medicare health and safety standards known as Conditions of Participation and Requirements of Participation. Unlike the new OSHA ETS, this requirement does not allow for testing in lieu of vaccination except for limited accommodation of employees with disabilities and sincerely held religious beliefs that legitimately preclude vaccination.

These new vaccination requirements apply to 21 different provider and supplier types, such as hospitals, hospices, end-stage renal disease facilities and long-term care facilities – many facilities where EMS agencies provide emergency and non-emergency ambulance service. EMS agencies and ambulance services are not among the provider and supplier types that are covered by this new rule, but the definition of staff covered by the rule is very broad, which could bring EMS into the sphere of coverage in some circumstances.

The all-encompassing definition of “staff” who are covered under this requirement will bring EMS agencies into the ambit of coverage at least to some extent. The vaccination requirement applies to staff working at these facilities regardless of clinical responsibility or patient contact. The definition of staff also includes any staff member who provides any care, treatment or other services for the facility and/for its patients – including not just employees, but licensed practitioners, students, trainees and volunteers.

Here is where EMS agency employees may be covered – the definition also includes individuals who provide care, treatment or other services for the facility and/for its patients “under contract or other arrangements.” What exactly does that mean? We believe that this requirement likely will not include 911 emergency ambulance response, since at that point, the EMS agency is arguably not under any contract or arrangement to serve those patients. But this could include ambulance services under contract, especially those who provide regular non-emergency ambulance service or other medical transportation for these facilities, even if not under a formal written contract.

Regardless of coverage under this new rule, the facilities themselves may require an ambulance service that provides service to them to ensure that the ambulance crews coming into their facilities are vaccinated or meet a proper exception. So, if facilities take this position based on the language of the rule, it could end up that EMS agencies are compelled to comply with the standards as a business necessity, even though not covered by the terms of the rule itself.

Like the new OSHA ETS, the CMS rule allows for exemptions to the mandatory vaccination requirement for staff with recognized medical conditions for which vaccines are contraindicated or for sincerely held religious beliefs. But CMS states that exemptions could be appropriate in “limited circumstances” but that “no exemption should be provided to any staff for whom it is not legally required or who requests an exemption solely to evade vaccination.”

Since there are so many unanswered questions in the new rules, EMS agencies may wish to take advantage of the comment opportunity and submit their thoughts and questions to OSHA and CMS on these new rules. It is clear that these agencies did not fully consider the unique circumstances of ambulance services and EMS when developing these new standards.

Comments on the OSHA COVID-19 Vaccination and Testing; Emergency Temporary Standard ETS must be submitted by Dec. 6, 2021 in Docket No. OSHA-2021-0007 an can be submitted electronically to http://www.regulations.gov.

Comments on the CMS Interim Final Rule with Comment Period can be submitted electronically, no later than 5 p.m. on Jan. 4, 2022. In commenting, refer to file code CMS–3415–IFC and submit comments to http://www.regulations.gov Follow the ‘‘Submit a comment’’ instructions.