Category: Health Care

CMS also Mandates Vaccination for Healthcare Employees, but NY FIs and LHCSAs do not appear to be Covered by the CMS Mandate

Posted on | by Anthony Troia

On the same day that OSHA issued its emergency temporary standard (“ETS”) requiring vaccination of employees of companies with 100 or more employees, the Centers for Medicare & Medicaid Services (“CMS”) published its own regulation mandating the vaccination of employees of covered healthcare providers.

Per the CMS regulation, covered facilities must ensure that workers receive either the first dose of a two-dose vaccine or a single-dose vaccine, or otherwise request an exemption from such requirements, by December 5, 2021.  Except for those workers granted an exemption or delay in vaccination per Centers for Disease Control (CDC) recommendation, all staff must be fully vaccinated by January 4, 2022.  There is no option to test weekly and opt out of vaccination under the CMS regulation.

The CMS regulation applies to certified home health agencies, but notably does not apply to home and community-based services. Thus, it appears that the CMS regulation will not apply to New York’s LHCSAs or FIs.

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Gov. Hochul’s Executive Order Reinstates Regulatory Waivers for LHCSAs and CHHAs

Posted on | by Anthony Troia

The Governor has signed an Executive Order (“EO”) that will provide relief to LHCSAs and CHHAs from some of the challenges caused by the recent nursing and aide shortages. The EO:

  • allows initial patient visits for CHHAs to be made within 48 hours of receipt and acceptance of a community referral or return home from institutional placement;
  • allows CHHAs and LHCSAs to conduct in-home supervision of PCAs and HHAs as soon as practicable after the initial service visit, or to permit in-person and in-home supervision to be conducted through indirect means, including by telephone or video communication; and
  • permits nursing supervision visits for personal care services to be made as soon as practicable.
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About that Religious Exemption…

Posted on | by Anthony Troia

Over the last several days, our firm has received a number of questions about the religious exemption. At a high level, only “sincerely” held religiously-based objections to vaccination are entitled to an exemption. Thus, the employer must initially determine that an employee’s objection to the vaccination mandate is motivated by religious reasons, and not political, medical, or philosophical reasons.

Employers have expressed concern about being sued by employees who are improperly denied a religious exemption. There are some, albeit limited, court decisions that illustrate how employers could prevail in such employment lawsuits.

In Beck v. Williamson College of the Trades et al. (Pa. Com. Pl. Aug. 24, 2021), a student attending a private, post-secondary school in Pennsylvania brought suit in state court against the school, alleging religious discrimination, among other things, based on the school’s failure to provide him an exemption from its vaccination policy based on his religious beliefs. The student, who identifies as Catholic, claimed that his objection to the COVID-19 vaccine was based on a sincerely held religious belief that the vaccines were developed from aborted fetal cell lines and that receiving any of the vaccines would compromise his ability to act in a way consistent with his Catholic faith. (This same argument has frequently been cited by home care aides seeking a religious exemption). The student sought immediate relief from the court to allow him to continue his studies at the school without having to comply with its vaccination policy.

On September 14, the court denied the student’s request for immediate relief, and instead, upheld the school’s decision to deny the student’s request for exemption from its vaccination policy. As relevant to home care, in analyzing his religious discrimination claim, the court explained that the student failed to establish that his belief — from which the objection to the vaccines derives — was both sincerely held and religious. The court also found that the student failed to show a discriminatory reason for the school’s decision to require him to obtain the vaccine.

According to the court, the student could not show a sincerely held religious belief given his acknowledgment that he had previously (within the past two years and prior to matriculating at the school) obtained vaccinations with origins that he knew were similar to those of the COVID-19 vaccines. The MMR vaccine, which many home care healthcare personnel are required to obtain as a condition of working in home care are such examples.

The court also observed that the student’s religious discrimination claim appeared to be a more “global,” rather than religious, objection to “unprecedented restrictions on basic human freedoms” created by the COVID-19 pandemic.

Finally, the court explained that, even assuming the student’s objection to being vaccinated was based on a sincerely held religious belief, the school had a lawful, nondiscriminatory reason for its policy — to protect the health and safety of its students and staff during a global pandemic and to better ensure the continued operations of the school. The school showed that it had applied its policy in the same manner to all students regardless of the identity or faith of those who requested an exemption. The court also found lawful the school’s policy, which required requests for religious exemption to include (1) a statement of published doctrine from the student’s religious group indicating that the vaccines violated the student’s religious beliefs; and (2) a statement from a spiritual leader of the local place of worship indicating that the student was a member of that faith.

The Beck decision, although not binding in New York, is reasonable, consistent with precedent and, thus, likely to be cited by New York courts. Employers that are increasingly facing pressure from MLTCs, landlords and other contractual partners to vaccinate their workforce (without any religious or medical exemptions being permitted) should take note of the Beck analysis in structuring their religious exemption process. Doing so could mitigate employers’ exposure to employment claims from employees who are denied an exemption.

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No Unemployment Benefits for Terminated Healthcare Workers

Posted on | by Anthony Troia

As discussed previously, the New York Commissioner of Health had declared, shortly after the healthcare worker vaccination mandate was enacted, that healthcare workers who lose their employment because they refuse to vaccinate would not be eligible for unemployment insurance benefits. The New York State Department of Labor has now updated its website to confirm these principles.

As stated by the Department, “Workers in a healthcare facility, nursing home, or school who voluntarily quit or are terminated for refusing an employer-mandated vaccination will be ineligible for UI absent a valid request for accommodation because these are workplaces where an employer has a compelling interest in such a mandate, especially if they already require other immunizations.”

However, we note that the DOL’s website also states, “a worker who refuses an employer’s directive to get vaccinated may be eligible for UI in some cases if that person’s work has no public exposure and the worker has a compelling reason for refusing to comply with the directive.” Thus, the Department has left open the possibility of granting benefits to some healthcare workers who are terminated due to noncompliance with the vaccination mandate.

If you have any questions about unemployment insurance implications of the mandate, please contact us.

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NY Minimum Wage for Upstate Counties Scheduled to Increase

Posted on | by Anthony Troia

The “upstate” minimum wage rate will be increasing from $12.50 to $13.20 effective December 31, 2021. Upstate employers paying minimum wage should ensure that this increase is effective for all work performed on December 31. The first date for when the new minimum wage rate will take effect is not January 1, 2022. As previously established, the minimum wage in Long Island and Westchester County will increase to $15.00/hour effective December 31, 2021.

Employers should consider the impact of the minimum wage increase on issues such as spread of hours, as the “credit” for the spread of hours will now decrease for non-exempt employees whose base wages are only slightly higher than the minimum wage.

Please let us know if you have any questions about these minimum wage changes.

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New York DOH Posts FAQs Regarding the Healthcare Worker Vaccination Mandate

Posted on | by Anthony Troia

Today, the Department of Health (“DOH”) posted a FAQ guidance document concerning the healthcare worker vaccination mandate. The FAQs are available here.

In relevant part, the FAQs reaffirm that fiscal intermediaries and personal assistants are not covered by the vaccination mandate.

Insofar as office staff are concerned, the FAQs state that “personnel may include members of the workforce who have no direct patient or resident contact if the personnel engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel.”  Unhelpfully, the DOH further states that it will be up to the individual providers to identify which of their office staff are covered by the vaccination mandate, in view of their definition and FAQ guidance.

As we have discussed in a webinar, the FAQs reaffirm that employees who receive an exemption from the vaccination requirements are not required to undergo weekly COVID-19 testing. Similarly, the DOH’s FAQ confirms that antibodies and evidence of a prior COVID-19 infection will not be acceptable in lieu of vaccination.

The DOH has stated that covered personnel may utilize this form and this one to request an exemption on the basis of medical reasons.

Insofar as vaccines received in other countries, the FAQ notes that “only people who have received a complete series of a COVID-19 vaccine that is either approved or authorized for emergency use by the U.S. Food and Drug Administration (FDA) or the World Health Organization (WHO) are considered to be ‘fully vaccinated.’” Thus, the FAQ concludes, “People who received a COVID-19 vaccine that has neither been authorized by the FDA or the WHO are not fully vaccinated and will, thus, need to comply with this vaccination mandate.”

The FAQ does not address religious exemptions, or the ongoing litigation regarding the validity of the State’s vaccination mandate. Notably, Governor Hochul has, over the last few days, vowed to fight and protect the mandate in courts.

If you have any questions about these developments, please do not hesitate to reach out.

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Healthcare Worker Vaccination Mandate Adopted Today

Posted on | by Anthony Troia

The Department of Health, Codes Committee of the Public Health and Health Planning Council (PHHPC) has just adopted the Department’s emergency regulation that will require covered providers, including LHCSAs, to vaccinate their healthcare staff. CDPAP is not covered by this regulation. We summarize the key points here:

  1. Contrary to the proposed regulation that was published by the Department only a few days ago, the final regulation (see final regulation HERE) does not allow for workers to avoid vaccination on the basis of a religious reason. The only remaining basis for a worker to decline the vaccine is to provide a medical reason.
  2. “Covered entities” under the regulation include any Article 28 licensed entity, including but not limited to general hospitals, nursing homes, and diagnostic and treatment centers, any Article 36 entity (including CHHAs, LHCSAs, LTHHCPs, AIDS home care programs), hospices, and adult care facility licensed by the DOH.  Standalone EMT companies are not covered. However, any EMT affiliated with a hospital will be covered.
  3. Covered personnel include “all persons” employed or affiliated with a “covered entity,” whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients, or residents to the disease. This definition is a bit vague and has garnered a lot of questions about whether LHCSA office staff would be covered. The PHHPC did not discuss LHCSAs specifically today, but they did discuss other settings where non-caregiver staff would be required to vaccinate. Based on that discussion by the PHHPC, it appears that office staff would be required to vaccinate because office staff have the “potential” to expose aides to COVID. This issue, however, will be subject to further guidance from the State. The PHHPC urged the Department to address this question in a DAL.
  4. The medical exemption will be allowed for workers who present a certification from a licensed physician or a certified nurse practitioner that the vaccine “is detrimental to the health” of the employee, “based upon a pre-existing health condition” of that employee.
  5. The regulation, once effective, will supersede Executive Order 16, which had mandated vaccination of certain hospital and nursing staff, including contractors who went into congregate settings (such as home care staff that service patients in nursing homes or assisted living facilities).
  6. Workforce shortages were raised as a concern during today’s PHHPC meeting, when this emergency regulation’s adoption was discussed. The Council was urged to consider an exemption for providers who – despite efforts to vaccinate staff – would have workforce shortages if their staff refused to vaccinate. The Council nonetheless adopted the regulation without making any exceptions for these staff shortage scenarios, but it did urge the Department to consider and address this concern.
  7. There was a brief discussion by the Council regarding enforcement and penalties for noncompliance. The Department expects providers to be the “gatekeepers” and ensure that any medical exemption request submitted by an employee is valid. It is daunting for providers, who are already busy with the ordinary demands of operating a home care agency, to think about policing physicians’ notes and ensuring that those physicians are accurately recommending a medical exemption for their aide patients. However, the Department expects the providers to do their due diligence and ensure that any physician notes are valid and based on “generally accepted medical standards.” The Department reinforced that it would audit providers for compliance, but it is not clear how they would do that given their limited resources. Insofar as penalties are concerned, the Department attorney alluded to, but did not specifically state, that the Department could initiate enforcement proceedings against noncompliant agencies, and such enforcement proceedings could include monetary penalties. LHCSAs looking to apply through the RFO in several months should diligently avoid incurring any liability or penalties through the Department, as such penalties will surely be subject to review in the RFO.
  8. For home care, the deadline for compliance with these mandates is October 7, 2021. The first vaccine must be received by all covered employees by October 7, unless an exemption applies. Thereafter, the aide will not be able to work. For office staff who refuse to vaccinate, providers may consider moving such individuals to remote work environments.

Upon the request of the DOH, covered entities will be required report and submit documentation regarding the following:

  • the number and percentage of personnel that have been vaccinated against COVID;
  • the number and percentage of personnel for which medical exemptions have been granted; and
  • the total number of covered personnel.

With the Council having adopted the emergency regulation today, the regulation will take effect immediately once it is recorded with the Department of State. The recording could be done today or by the end of the week. The October 7 deadline for home care providers is fast approaching though. Thus, we encourage all providers to promptly work on implementing these requirements. The shortage of home care caregivers has never been more acute, and it will take creative and prompt efforts by providers to persuade and vaccinate their workers. There are many cultural and deep-rooted reasons that have kept as many as 75% of workers of some agencies from vaccination thus far, and agencies will have to understand and break through those cultural divides in order to get their staff vaccinated. Please reach out to us if you need any assistance in this regard.

The Department requires all LHCSAs to adopt and implement policies and procedures to ensure compliance with the foregoing requirements. Our attorneys and consultants can assist your teams to prepare these policies.

If you have any questions about this alert, please do not hesitate to reach out.

Gov. Cuomo Announces Covid Vaccination Mandate for Healthcare Workers

Posted on | by Anthony Troia

Governor Cuomo announced today that all healthcare workers in New York State, “including staff at hospitals and long-term care facilities (LTCF), including nursing homes, adult care, and other congregate care settings, will be required to be vaccinated against COVID-19 by Monday, September 27.” The State Department of Health will issue Section 16 Orders requiring all hospital, LTCF, and nursing homes to develop and implement a policy mandating employee vaccinations, with limited exceptions for those with religious or medical reasons.

The announcement does not specifically state that home care workers will be covered by this requirement, and the Governor’s Press Release suggests that the requirement will only apply to healthcare workers that work in congregate care settings. However, the vaccination requirement generally and broadly applies to “all healthcare workers,” which could be interpreted to include home care workers. We trust that confirmation and clarification as to the applicability of this vaccination requirement to home care workers (including CDPAP) will be provided soon. In either case, home care workers that work in facilities, such as nursing homes, will almost surely be covered by this requirement.

We will provide more information about this development as it becomes available.

OSHA Issues Updated Enforcement Guidance

Posted on | by Anthony Troia

On March 12, 2021, OSHA established the National Emphasis Program – COVID-19 (the NEP) targeting higher hazard industries for enforcement action and updated and replaced its Enforcement Response Plan for COVID-19 (the Enforcement Plan) to prioritize in-person worksite inspections by OSHA Compliance Safety and Health Officers.

According to the NEP, OSHA is targeting those specified industries whose workers have increased “potential exposure” to a COVID-19 hazard, and that puts the largest number of workers at serious risk. The NEP also focuses on making sure that “workers are protected from retaliation,” including by referring allegations of retaliation to OSHA’s Whistleblower Protection Program. Home health care is one of the industries that will be specifically targeted by OSHA per these new NEP guidelines.

In the Enforcement Plan, OSHA instructs its Area Directors to “prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19” and “[w]here practical … perform on-site workplace inspections.”

What Should Providers Do Now?

In light of the NEP and the Enforcement Plan, all employers who are not primarily relying on telework or other remote practices for their employees should consider the following:

  • Review and update your COVID-19 safety documents, programs, and procedures, including your:
    • written COVID-19 safety and health plan, including contingency planning for emergencies, such as the pandemic
    • procedures for hazard assessment
    • procedures for PPE assessment and use
    • face covering measures for employees and all those with whom an employee would come in contact in the work environment, consistent with CDC guidelines regarding construction, donning, and maintenance of face coverings
    • sanitation practices
    • worker protection actions implemented under the hierarchy of controls (engineering controls, administrative controls, work practices, and PPE), including physical distancing measures; ventilation; stay-home-when sick and return-to-work procedures for exposed and sick workers; and both routine and case-specific cleaning of surfaces
    • respiratory program and PPE provision, including any modifications made as a result of the pandemic and documented good faith measures when compliance is not possible – OSHA has been asking for this from home health care providers throughout the audits they have done during the pandemic
    • COVID-19 signage
    • training and training records
    • signage, training, and procedures encouraging employees to report symptoms and to raise safety concerns, and protecting employees against retaliation for doing so
    • practices regarding employee access to exposure and medical records
    • injury/illness recordkeeping and reporting documents and procedures
    • OSHA Hazard Alerts applicable to the healthcare industry (there is no home care-specific Hazard Alert)
  • Review OSHA’s newest COVID-19 Guidance, Mitigating and Preventing the Spread of COVID-19 in the Workplace
  • Consider the four elements of the General Duty Clause violation with respect to COVID-19-related hazards: (1) employer failed to keep the workplace free of a hazard to which employees of that employer were exposed; (2) hazard was recognized; (3) hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible and useful method to correct the hazard. CDC guidelines will be used to show a recognized hazard and/or feasible means to abate the hazard.

What Should an Employer Expect if OSHA Conducts an Inspection?

  • OSHA will not tell you in advance that it is starting an investigation and typically arrives on-site without prior warning.
  • Opening conferences will be held in a manner consistent with COVID-19 safety precautions, i.e., in an uncontaminated administrative area or outdoors, and will include union/employee representatives and management personnel responsible for COVID-19 safety and for other COVID-19-related programs, such as HR, medical staff, and facilities/physical plant.
  • The “walkaround” will occur in areas that an OSHA investigator determines he/she wants to see. Note that the investigator can issue citations for any health or safety hazard observed during the walkaround, even if not related to COVID-19.
  • Interviews of management and non-management personnel can be conducted before, during, and after the walkaround. Employees may be contacted by phone and/or the investigator may ask the employer to set up such calls while on-site. Typically, management cannot be present during the interviews, and an employee can approach the investigator to speak privately.
  • The investigator’s document review, including of records of programs described above, may occur before a walkaround and/or the investigator will ask to see or to have sent to the Area Office a copy of specified categories of documents.
  • Investigators will be particularly sensitive to indications or complaints of retaliation, including with respect to talking to OSHA representatives at any time, including during an investigation. Actions considered to be retaliation can result in separate Whistleblower enforcement actions, which can result in injunctive or monetary relief to the employee.
  • Citations, if issued, will be in the Serious classification, with penalties up to $13,653 per violation.
  • A General Duty Clause violation will not be issued except after approval by the OSHA Regional Administrator and the National Office, with input from the Department of Labor’s Regional Solicitor.
  • OSHA may decide to issue a Hazard Alert Letter (HAL) rather than a General Duty Clause or other citation, with recommended actions to be taken and subsequently reported to OSHA.
  • If the work establishment is part of a multi-location corporation, and a COVID-19 citation or HAL has been issued, OSHA may send a letter to the corporate entity about the citation or HAL and recommend that the corporation assess and abate COVID-19 hazards at all other locations. If unabated hazards are subsequently found, this notification letter may serve as subsequent bases for OSHA upgrading the amount of penalties or classification of its violations.

In sum, OSHA has proclaimed that it intends to take aggressive enforcement measures with respect to a broad range of businesses that have been operating in their usual workplaces during the pandemic. Employers in these businesses should prepare accordingly.

OSHA Issues Emergency Temporary Standard for Healthcare -Does it Apply to Home Care?

Posted on | by Anthony Troia

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) released the long-awaited COVID-19 Emergency Temporary Standard (ETS), establishing new mandatory safety requirements generally applicable to the healthcare industry.  The ETS applies to all settings where healthcare services or healthcare support services are provided, with certain enumerated exceptions. The ETS requires healthcare employers to take certain precautions to protect employees from the transmission of COVID-19 in the workplace, such as developing and implementing a COVID-19 plan to meet certain parameters, screening patients and limiting access to settings where direct patient care is provided, providing PPE to employees and ensuring appropriate use, and enforcing indoor physical social distancing requirements.

The proposed regulations specify that the ETS does NOT apply to “home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present.” Thus, patient homes might not be subject to the ETS, assuming the employees are vaccinated and pre-entry COVID screening is performed. Separately, the proposed regulation states that the ETS does not apply to “healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing).” Therefore, it appears that the ETS is not applicable to home care and fiscal intermediary offices, where mainly clerical and administrative services (such as billing, payroll, human resources) are performed.

The ETS will be published in the Federal Register shortly and will take effect immediately upon publication, for covered providers.