President Biden’s Executive Order to Expand Vaccination Requirements for Healthcare Facilities and Federal Contractors

by:  Jim Hoover

As most people know by now, on September 9, 2021 President Biden announced his Path Out of the Pandemic: COVID-19 Action Plan.  As part of the plan, the President signed Executive Order 14042, Ensuring Adequate COVID Safer Protocols for Federal Contractors.  The Executive Order is a six-prong, comprehensive plan outlining the President’s plan to combat COVID-19 and its variants. One prong of that plan includes expanding vaccination requirements for federal contractors including Medicare and Medicaid-certified facilities. This requirement is expected to apply to approximately 50,000 healthcare providers and cover a majority of healthcare workers across the country.

To combat the spread of COVID-19, the Centers for Medicare & Medicaid Services (CMS) is using its authority to expand the emergency regulations that require vaccinations for nursing home workers to encompass additional healthcare providers and suppliers who participate in Medicare and Medicaid. As a condition for participating in the Medicare and Medicaid programs, CMS will require that staff of all Medicare and Medicaid-certified facilities be vaccinated.

CMS indicated the Medicare and Medicaid-certified facilities will include hospitals (acute care, critical access hospitals, and inpatient rehabilitation facilities), outpatient facilities (ambulatory surgical centers, comprehensive outpatient rehabilitation facilities, federally qualified health centers, and rural health clinics), long-term care facilities & skilled nursing facilities, durable medical equipment suppliers, home health agencies, hospices, clinical labs, and ambulances.  At this time, it is uncertain whether physician practices would fall under the new vaccination mandate.

Based on indications from the White House, we anticipate staff who must be vaccinated will include, but will not be limited to, clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.

CMS is developing an Interim Final Rule with a comment period and plans to issue the rule in October 2021. CMS is encouraging all certified Medicare and Medicaid facilities to begin complying with these expected regulations by urging workers who are not currently vaccinated to get vaccinated immediately. Healthcare facilities are encouraged to use all available resources, including employee education and clinics, to meet the new federal requirements.

In support of another prong of the President’s plan, the Safer Federal Workforce Task Force released guidance on September 24, 2021 detailing COVID-19 vaccination and other pandemic-related workplace safety requirements for federal contractors. The guidance attempts to answer many of the questions raised by federal contractors about the requirements, however additional information should be forthcoming by the Task Force in the coming weeks. 

Covered federal contractors are responsible for ensuring that all covered full-time or part-time contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. The guidance also requires masking and physical distance in compliance with Centers for Disease Control guidelines at covered contractor workplaces. A covered contractor workplace is a location the contractor controls at which an employee of a covered contractor is likely to be present at any point during the period of performance.

Covered federal contractors are those with contract language mandating adherence with the guidance. Agencies will be required to incorporate contractual language into renewals, extensions, or exercised options of existing contracts, as well as new solicitations and contracts issued, that are above the simplified acquisition threshold (currently $250,000) by October 15, 2021. Though not required, it is likely that the government will encourage modifications of long-term contracts to include the new clause. 

Prime contractors must ensure that compliance clauses are incorporated into its contracts with subcontractors except those solely providing products.  All covered federal contractors and subcontractors must comply regardless of business size.

For covered federal contractors with active contracts, employees must be fully vaccinated by December 8, 2021. For covered federal contractors awarded new contracts (or options, renewals, or extensions), employees must be fully vaccinated by the first day of performance under the new contract, option, renewal, or extension. 

Employees who work from home must be fully vaccinated, but do not have to comply with the masking or physical distancing requirements discussed below.  Employees who work outside must also be vaccinated. However, the mandate does not apply to any employees who work outside of the United States or its outlying areas.

Covered federal contractors must review employees’ documentation to prove vaccination status. Covered federal contractors must require employees provide one of the following documents: a copy of the record of immunization from a healthcare provider or pharmacy; a copy of the employee’s COVID-19 Vaccination Record Card; a copy of immunization records from a public health or State immunization information system; or a copy of any other official documentation verifying vaccination that includes all of the following information: (a) vaccine name, (b) date(s) of administration; (c) name of the health care professional or clinic site who administered the vaccine. Employers can accept digital copies of these records. For example, photographs, scanned documents, or PDFs are acceptable forms of proof. 

If an employee has lost or does not have a copy of the required documentation employees should be directed to obtain new copies or verification of their vaccination status. Employees should be able to obtain new copies of their vaccination card from their vaccination provider. If the vaccination provider is no longer operating, employees may contact their State or local health department’s immunization information system (IIS) for assistance. 

Covered federal contractors still need to accommodate employees with closely held religious beliefs or ADA-qualifying disabilities that inhibit their ability to receive a COVID-19 vaccine. Accommodations must also be offered to employees who are unable to wear masks due to an ADA-qualifying disability or closely held religious belief.

Covered federal contractors must continue to enforce other measures such as masking or social distancing.  There are differing requirements based on the location of the worksite.  The rules state that covered contractors must ensure that all individuals and visitors (regardless of vaccination status) comply with the published CDC guidance for masking at workplaces in areas of high or substantial community transmission. In areas with low or moderate community transmission, fully vaccinated individuals do not need to wear masks. Fully vaccinated individuals do not need to practice social distancing, regardless of the level of community transmission. Individuals who are not fully vaccinated must wear a mask indoors and in crowded outdoor settings or outdoor settings that require sustained close contact with other individuals who are not fully vaccinated regardless of the level of community transmission. 

Masks will not be required if an individual who is not fully vaccinated is alone in an office with floor to ceiling walls and a closed door, in brief times when an individual is eating or drinking so long as physical distance of at least 6 feet is maintained, or if the individual obtains an accommodation pursuant to an ADA-qualifying disability or a sincerely held religious belief.

Covered federal contractors may also allow exceptions for employees who are engaging in activities in which masks may get wet, during high-intensity activities, or when wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment. These exceptions must be approved in writing by an authorized representative of the covered federal contractor. 

The full text version of the Task Force Guidance can be found here. 

Jim Hoover is a partner at Burr & Forman LLP practicing exclusively in the firm’s Healthcare Industry Group. Jim may be reached at (205) 458-5111 or jhoover@burr.com.