The Federal vaccine requirement for health care workers applies to more than just doctors and nurses.  The requirement potentially applies to people whose work only occasionally requires them to visit a hospital, site of care, or other covered facility.

The Final Interim Rule, published on November 4, 2021, also applies to workers who only occasionally visit a hospital, ambulatory surgery center, or other site of care, such as sales people, delivery personnel, and repairmen, among others.  This is possibly true even if that person visits a health care facility just a couple of times a year. 

In short, there is no bright-line rule in the mandate exempting an employee who makes only “infrequent” visits to a covered facility or site of care.  The application depends on frequency, services provided, and the proximity to staff and patients. 

The mandate, which applies to facilities that participate in Medicare and Medicaid, is not even necessarily limited based on infrequency of visits to or amount of time spent working at a facility or site of care.  The comments to the rule addressed this issue:

Regardless of frequency of patient contact, the policies and procedures must apply to all staff, including those providing services in home or community settings, who directly provide any care, treatment, or other services for the facility and/or its patients, including employees; licensed practitioners; students, trainees, and volunteers; and individuals who provide care, treatment, or other services for the facility and/or its patients, under contract or other arrangement.

The comments state that the vaccine requirement could include repair people, delivery people, administrative staff, housekeeping staff, food services, and others. 

In determining whether the COVID-19 vaccination requirement applies, employers should consider the employee’s frequency of presence at the covered facility or site of care, services provided by the employee, and the employee’s proximity to patients and staff while on site.  Providers and suppliers “are not required to ensure the vaccination of individuals who infrequently provide ad hoc non-health care services (such as annual elevator inspection), or services that are performed exclusively off-site, not at or adjacent to any site of patient care (such as accounting services), but they may choose to extend COVID-19 vaccination requirements to them if feasible”, according to the comments to the rule.

The rule cited the examples of an emergency repair worker who makes a single visit to a covered health care facility and wears a mask the whole time, and an inspector who visits once a year, wears a mask and has limited interactions with patients and staff.   In those cases, vaccination probably is not be required

“On the other hand,” the comments continued, “a crew working on a construction project whose members use shared facilities (restrooms, cafeteria, break rooms) during their breaks would be subject to these requirements due to the fact that they are using the same common areas used by staff, patients, and visitors.”

Even as the rule discussed these limiting factors and potential exceptions, it nonetheless emphasized that the Federal government, and the rule itself, “strongly encourage[s] facilities, when the opportunity exists and resources allow, to facilitate the vaccination of all individuals who provide services infrequently,” even those who “are not otherwise subject to the requirements” of the interim rule.

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.

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