The Interim Final Rule implementing a federal COVID-19 vaccination requirement, released November 4, 2021, does not necessarily apply to telehealth or remote health care workers.

The requirement targets health care workers at facilities participating in Medicare and Medicaid. It broadly applies to “all staff that interact with other staff, patients, residents, clients, or PACE program participants in any location, beyond those that physically enter facilities, clinics, homes, or other sites of care,” according to the comments to the Interim Final Rule.

However, the comments to the rule clarify that “[i]ndividuals who provide services 100 percent remotely, such as fully remote telehealth or payroll services, are not subject to the vaccination requirements” under the interim rule (emphasis added). The comment provides further guidance for remote health workers and their employers: “Facilities that employ or contract for services by staff who telework full-time (that is, 100 percent of their time is remote from sites of patient care, and remote from staff who do work at sites of care) should identify and monitor these individuals as a part of implementing the policies and procedures of this IFC, documenting and tracking overall vaccination status …”.

The rule emphasizes that this carve-out for remote, or telework, health care workers only applies to those who truly never enter a health care facility or interact with other staff who do so:

“[T]here may be staff that primarily provide services remotely via telework that occasionally encounter fellow staff, such as in an administrative office or at an off-site staff meeting, who will themselves enter a health care facility or site of care for their job responsibilities. Thus, we believe it is necessary to require vaccination for all staff that interact with other staff, patients, residents, clients, or PACE program participants in any location, beyond those that physically enter facilities, clinics, homes, or other sites of care.”

Consequently, the interim rule, its comments, and the initial analysis of the rule indicate the mandate does not apply to health care workers who never physically enter a health care facility or site of care and who do not interact in person with patients or other staff who enter health care facilities or sites of care.

However, the comments to the interim rule emphasize that such workers might be subject to other federal or state COVID-19 vaccination requirements. Further, the rule is ambiguous in its application to some categories of employees, such as those who might visit a facility or site of care but only do so infrequently.

Our healthcare attorneys are available to answer your specific questions about the new regulations, and will help you implement the requirements. Please reach out to your Lashly & Baer attorney with any questions.

Prepared by:

Scott A. Pummell
Phone 314-436-8369
Email: spummell@lashlybaer.com

This summary and legal alert is an overview of the new guidance. It is not intended to be, and should not be construed as, legal advice for a specific factual situation.