Last week, when the OSHA ETS was first issued, we provided a high-level overview of the requirements of the ETS. Since that time, we have received a number of questions regarding the impact of the OSHA ETS on LHCSAs and FIs.

OSHA’s ETS will not apply to New York’s healthcare workers, who are already covered by OSHA’s June 2021 ETS. Providers are reminded to review our alerts from this summer, where the earlier ETS’ requirements were discussed in detail.

More importantly, the stricter NY Department of Health regulations mandating vaccination, and which do not provide for a religious exemption or for a weekly testing option, will supersede the OSHA ETS standards. Thus, insofar as New York’s CHHAs and LHCSAs are concerned, the New York Department of Health regulation requiring vaccination continues to control the vaccination obligations of healthcare personnel in New York. The requirements of the OSHA ETS, concerning PPE, training, and recordkeeping, will apply in conjunction with the more employee-protective vaccination mandate that was passed by the Department of Health.

Insofar as the office employees of CHHAs and LHCSAs are concerned, such employees will also be covered by the stricter New York Department of Health regulations mandating vaccination which, again, do not allow for a religious exemption or for a weekly testing option. The recently published OSHA ETS regulations will apply to New York’s CHHAs and LHCSAs (assuming such companies have at least 100 employees) insofar as the recordkeeping requirements, education of employees, and paid time off requirements are concerned.

The vaccination obligations applicable to office employees who work strictly on FI matters will depend on joint employment and corporate structure considerations.

In summary, as between the New York Department of Health vaccination mandate that providers have been complying with since October 7, and the new OSHA ETS standard that was announced and is scheduled to take effect on December 5, 2021, the stricter and more employee-protective provisions of the DOH’s vaccine mandate will “trump” the less employee-protective measures of the OSHA ETS. Otherwise, where the federal OSHA ETS requirements and New York’s regulations can be reconciled and apply in tandem, they will.

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