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Author: Scott Moore

Scott A. Moore, Esq. has been in the emergency medical services field for over 34 years. Scott has held various executive positions at several ambulance services in Massachusetts. Scott is a licensed attorney, specializing in Human Resources, employment and labor law, employee benefits, ambulance service reimbursement, and corporate compliance matters. Scott is the Human Resources & Operational Consultant to the American Ambulance Association (AAA) and frequently lectures at EMS conferences. In addition, Scott created Newton 360, a performance feedback and operational efficiency mobile platform designed specifically for EMS agencies. Scott is a licensed attorney and is admitted to practice in the Commonwealth of Massachusetts, the State of Illinois, the State of Texas, and the United States District Court for the District of Massachusetts. In addition, Scott holds certifications as a Professional in Human Resources (PHR), Society for Human Resources Certified Professional (SHRM-CP), and Certified Ambulance Compliance Officer (CACO). Scott has been a Site Reviewer for the Commission on the Accreditation of Ambulance Services (CAAS) for many years and currently serves on the CAAS Panel of Commissioners. Scott serves as an Adjunct Faculty Instructor for the University of Maryland Baltimore County EHS Graduate Program. In addition, Scott is currently serving on the Board of Directors for The Savvik Foundation, The Code Green Campaign, and the Employers Against Domestic Violence. Scott earned his bachelor's degree in psychology from Salem State College and his Juris Doctor from Suffolk University Law School. Scott maintains his EMT and is still affiliated with the Fire Department in his hometown. Scott is a member of the National Association of Emergency Medical Technicians, the National EMS Management Association, the International Association of EMS Chiefs, the American Bar Association, the Massachusetts Bar Association, the Illinois State Bar Association, the Society for Human Resource Management, and the Northeast Human Resource Association.

Organized Labor is Making a Comeback

Written by Scott Moore on . Posted in Member Advisories, News.

In my early EMS leadership career, I worked for an organization that was swallowed up by a large national EMS consolidator. The unsettled times that occurred during, and immediately following the acquisition,  led a small group of paramedics to petition for union representation. At the time, I had not yet finished my undergraduate or law degree.  My experience with leading a management team through a union campaign was non-existent.  The organization hired a labor attorney to work with our team to ensure that we stayed compliant in the weeks leading up to the National Labor Relations Board (NLRB) election.

 

It was an incredibly difficult time for both the leadership and the employees.  Anyone who has lived through a union campaign can tell you, it can make you question the type of leader and manager you think you are.  It puts an unbelievable strain upon everyone in the organization.  Ultimately, the employees elected not to be represented by a union. As a team, we learned a great deal during this process. We realized that we were not the employee-centric organization that we believed we were.  There is an old saying in labor relations, “every company gets the union it deserves.”

 

Union representation had been on the decline for several decades as numerous laws and regulations have been enacted to address many of the concerns that drove union membership. As we know, the last few years have presented incredible challenges for EMS organizations and their employees. The Biden Administration brings with it a President who has adopted a pro-union agenda and a Secretary of Labor, who is a former union leader.

 

A recent article published by the National Law Review states that union petitions are up 57%. Nearly every day there is a story of unionization at organizations that were previously not union strongholds.  Additionally, polling seems to suggest that Americans view unions far more favorably than they did just over a decade ago. Traditionally, unions used to focus on larger employers, but have recently added all employers, including those with smaller collective bargaining units.

 

EMS agencies are no exception to this trend in union representation. It should be no surprise to EMS leaders that several unions believe that EMS is ripe for labor organizing. I will not go into all of the reasons that EMS is the focus of labor organizations but suffice it to say, the recent workforce challenges have made their message far more enticing to employees. Recently, an organization that I once was a part of and would not have believed was ripe for organizing, just overwhelmingly voted to be represented by a union.

 

The Best Strategy

If your organization is committed to remaining in a non-union environment, it is critical that you make this an intentional part of your strategic plan. Generally, employees join unions because they are unhappy or dissatisfied with the relationship they have with the management team or company they work for.  This is often articulated by dissatisfaction with pay and benefits, consistency in policy and procedure practices, and the day-to-day interactions with management. More specifically, the relationship or treatment by their immediate supervisor.

 

The best strategy is to be proactive. This is not something that employers can or should ignore. This must be a stated and intentional part of your organizational strategic plan. Due to the workforce shortage, most organizations have been evaluating their pay and benefits programs. However, we are not always so good at communicating these benefits to our employees. Often, we treat pay and benefits like trade secrets, even with our own folks. EMS is notorious for its rumor mill and it is far better to control or influence the narrative regarding the benefits that your employees enjoy by working for your organization. You will be surprised how many on your team have no idea that some of your benefits exist or are available to them.

 

Education and communication are key elements in any union-free workplace strategy. Employers should utilize the AAA Total Compensation Statement that highlights all costs associated with pay and benefits.

The leadership team should evaluate the frequency of supervisor-employee interactions and the tools used to track these engagements. The stronger the relationship between the frontline employees and the leadership team, the less likely your employees are to invite an outside third party to represent them. If this is not one of your organization’s leading Key Performance Indicators (KPIs) or Vital Signs, it will disappear into the whirlwind of activity that consumes your team’s day.

 

Rules of the Road

It is important for your team to know the rules of the road as it relates to a fostering union-free strategy. The playing field is not exactly even.  Unions have the right to solicit employees and make promises of increased wages, benefits, and working conditions, regardless of their ability to deliver.  However, employers are far more limited in what actions they can take regarding union representation.  Employers can find themselves in trouble if they fail to follow some simple rules. Here are a few TIPS to help employers stay compliant.

T –          Employers cannot Threaten to discipline or reduce wages and/or benefits if their employees unionize or engage in union activity;

I –           Employers cannot Interrogate employees about their activities or feelings on union representation;

P –          Employers may not make Promises to employees to improve wages, benefits, or working conditions if they remain union-free;

S –          Employers cannot Spy on employees’ union-related activities.

Employers are free to discuss what joining a union might mean for the employee. For example, an employer can say “if the workforce is represented by a union, the terms and conditions of employment will be subject to collective bargaining.  The collective bargaining process may result in employees getting more, getting less, or the same wages and benefits that they have now.” The key is, to be honest in all communications with your employees.

A Path Forward

EMS leaders should deliver a clear message to their frontline leadership team. Focus on developing strong relationships with their employees. Encourage open and frequent lines of communication, listen to employee concerns, and address them quickly. Ensure that frontline leaders have been provided training and the TIPS for maintaining a union-free work environment. Lastly, be sure to contact the AAA at hello@ambulance.org if you have questions or need assistance.

DOL Electronic Injury & Illness Reporting

Written by Scott Moore on . Posted in Employee Wellness, Member Advisories.

Proposed Changes to the OSHA Electronic Injury & Illness Reporting Requirements

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is proposing amendments to its occupational injury and illness recordkeeping regulation, 29 CFR 1904.41. The current regulation requires certain employers to electronically submit their summary injury and illness data (Form 300A) to OSHA annually. OSHA uses these reports to identify and respond to emerging hazards and makes aspects of the information publicly available.

In addition to reporting their Annual Summary of Work-Related Injuries and Illnesses, the proposed rule would require certain establishments in certain high-hazard industries to electronically submit additional information from their Log of Work-Related Injuries and Illnesses, as well as their Injury and Illness Incident Report (Form 300, 300A, & 301). The latest proposed rule will require certain employers to submit more detailed information and is a return to the original electronic data submission rule that was proposed in 2016 and rolled back in 2017, prior to the rule taking effect. EMS organizations will be included in those industries that are considered high-hazard and thus, required to submit this information.

As we reported last month, OSHA reported that there was a 249% increase in illnesses and injuries reported by healthcare employers in 2020. This is no surprise given that this was at the heart of the pandemic. OSHA believes this rule will improve the agency’s ability to use the information in its enforcement and compliance assistance efforts to identify workplaces where workers are at high risk.

The proposed rule would:

  • Require establishments with one hundred (100) or more employees in certain high-hazard industries to electronically submit information from their OSHA Forms 300, 301, and 300A to OSHA once a year. Currently, only the Form 300A summary data is submitted electronically.
  • Update the classification system used to determine the list of industries covered by the electronic submission requirement.
  • Remove the current requirement for establishments with 250 or more employees not in a designated industry to electronically submit information from their Form 300A to OSHA annually.
  • Require establishments to include their company name when making electronic submissions to OSHA.

Under the proposed rule, establishments with 20-99 employees in certain high-hazard industries would continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA annually.

Those interested can submit comments must do so by May 30, 2022. If you have questions about your organization’s reporting requirements under the OSHA Regulations, be sure to contact the AAA at hello@ambulance.org for assistance.

DOL COVID-19 Exposure Rule-Making

Written by Scott Moore on . Posted in Employee Wellness.

The United States Department of Labor (US DOL) has published a notice of intent to partially reopen the rule-making process to permit additional comment and a public hearing on certain aspects of the OSHA Emergency Temporary Standard for Healthcare employers which was originally published in June 2021. OSHA is seeking further input from stakeholders as they develop a final standard. The public hearing will begin on April 27, 2022.

The agency is reopening the rulemaking record to allow for new data and comments on topics, including the following:

  • Alignment with the Centers for Disease Control and Prevention’s recommendations for healthcare infection control procedures.
  • Additional flexibility for employers to permit less prescriptive requirements
  • Removal of scope exemptions.
  • Tailoring controls to address interactions with people with suspected or confirmed COVID-19.
  • Employer support for employees who wish to be vaccinated.
  • Limited coverage of construction activities in healthcare settings.
  • COVID-19 recordkeeping and reporting provisions.
  • Triggering requirements based on community transmission levels.
  • The potential evolution of SARS-CoV-2 into a second novel strain.
  • The health effects and risk of COVID-19 since the ETS was issued.

OSHA made it clear that it is not proposing mandatory COVID-19 vaccination for healthcare workers. However, they are seeking comments regarding how it could help employers further support healthcare worker employees in their vaccination and boosting efforts. This could include paid leave, including travel time, for those seeking vaccinations or boosters.

The notice in the Federal Register had a slightly more relaxed tone as many areas in the country have seen a significant drop-off in cases.  If you are interested in submitting comments, you can do so electronically at www.regulations.gov.  If you wish to attend the video-based public hearing, you must file a notice of intention to appear with the US DOL within 14 days of the notice being officially published in the Federal Register.

If you have any questions about your current obligations under the OSHA rules, please email the AAA at hello@ambulance.org.

New for Members | 2022 Human Resources Manual!

Written by Scott Moore on . Posted in Human Resources, Publications.

The 2022 Human Resources Toolkit includes the addition of numerous practice notes intended to provide EMS leaders with a more practical understanding of the legal principles that necessitate much of the language found in many of the sample policies in the HR Manual. Additionally, the practice notes provide suggestions for EMS agencies to better insulate the organization from legal liability.

Members, Download Your Free PDF Copy!

5th Circuit Lifts Injunction on CMS Mandatory Vaccine Requirement for Half of U.S.

Written by Scott Moore on . Posted in Executive, Human Resources, Judicial.

On December 15, 2021, the United States Court of Appeals for the Fifth Circuit issued a ruling which modifies an earlier court national injunction related to the CMS mandatory vaccination rules.  In the latest ruling, the court upheld the injunction issued by the United States District Court for the Eastern District of Missouri as it applied to the fourteen (14) plaintiff states, Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio.  However, it overturned the lower court’s expansion of that injunction to other, non-plaintiff states, in the injunction.  Meaning that between the 5th and 8th Circuit Court rulings, the CMS mandatory vaccination injunction only applies to the following 24 states:

5th Circuit Plaintiffs: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, Ohio

8th Circuit Plaintiffs: Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire.

States not covered by the CMS mandatory vaccination injunction:

California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington, and Wisconsin

This decision, follows another mandatory vaccine related decision issued by the United States Court of Appeals for the Eleventh Circuit which criticized the Louisiana court for expanding the CMS vaccine mandate nationwide given that a Florida District Court had already refused to issue an injunction and because it felt that it was likely that the mandate was likely authorized under current CMS rules.

What does this mean for employers?

If you are an employer in one of the states not covered by an injunction, you should consult with any covered healthcare facility that your organization performs services under contract. These covered healthcare facilities will be required to mandate vaccination for their staff and for any contractor staff that interacts with their employees or patients.  Additionally, they will be seeking proof that your staff is vaccinated against COVID-19, unless they have a protected medical or religious accommodation.

Employers should have already taken the initial steps toward compliance with the CMS mandatory vaccination rules, including having a list of all employees with their vaccination status.  Additionally, employers should have an established policy related to mandatory vaccination and a procedure for requesting and processing an exception/accommodation requests. Lastly, healthcare institutions may independently institute mandatory vaccination rules for their employees and can require this of anyone entering their facility, including EMS staff.

We will continue to keep you post as these cases proceed through the legal system. These facilities may still independently require your staff to be vaccinated. If your organization has questions or need assistance deciphering or preparing for these requirements, please contact the AAA by emailing hello@ambulance.org.

 

 

 

Federal Court Enjoins the CMS Mandatory Vaccine Emergency Temporary Standard (ETS)

Written by Scott Moore on . Posted in Judicial, News, Regulatory.

On Monday, November 29, 2021, the United States District Court for the Eastern District of Missouri – Eastern Division has issued a preliminary injunction staying the Centers for Medicare and Medicaid Services (CMS) Mandatory Vaccination Emergency Temporary Standards (ETS) which were set to take effect on January 4, 2022. This preliminary injunction currently only applies to healthcare providers in the plaintiff states.

On November 10, 2021, the States of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, and New Hampshire filed a nine (9) count complaint in the United States Court for the Eastern District of Missouri seeking relief from the CMS Emergency Temporary Standard (ETS) which requires certain certified healthcare facilities to mandate COVID-19 vaccination of all employees, contractors, and those performing services “under arrangement.”  The complaint alleged that the ETS violates numerous provisions of the Administrative Procedures Act (APA), the Social Security Act (SSA), that CMS failed to consult with the state agencies that would be charged with enforcing such a mandate, failure to perform an impact analysis of the new rules, and several other Constitutional violations.

In the ruling, U.S. District Judge Matthew T. Schelp, agreed with the plaintiffs that a preliminary injunction was warranted because it posed an irreparable harm and that the plaintiffs demonstrated a likelihood of success on the merits of their complaint. The thirty-two (32) page ruling cites that Congress did not give CMS the authority to enact the mandatory vaccination regulations, nor authorized CMS to issue regulations that pre-empt validly enacted state legislation that contradict these new rules. The court believed that the plaintiffs would likely be able to show that CMS violated numerous administrative and rulemaking procedures.

Throughout the ruling the court cited the likelihood of significant harm to state sovereignty and how the implementation of the rule’s requirements would cause substantial economic harm to both the states and the healthcare facilities. Not only through the cost of implementation but also through the impact to a healthcare facility’s ability to provide care due to employees who refuse to get vaccinated.

This ruling is only applicable to covered healthcare facilities in the states of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, and New Hampshire. It is unknown if the stay will be expanded to other jurisdictions. Additionally, the OSHA Vaccination & Testing ETS is currently enjoined and OHSA has announced that they will halt implementation and enforcement associated with those rules. Despite these rulings, many EMS employers are subject to the mandatory vaccination requirements under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.

I advise employers to take the initial steps toward compliance while these cases proceed through the legal system. EMS employers are already required to have policies and procedures to determine and maintain a log of their employee’s vaccination status. Additionally, many EMS employers have already been contacted by their contracted healthcare facilities who have enacted a vaccine mandate, either prior to, or in response to the CMS ETS.  These facilities may still independently require your staff to be vaccinated.

I recognize that these are incredibly challenging times. If your organization has questions or need assistance deciphering or preparing for these requirements, please contact the AAA by emailing hello@ambulance.org.

 

Federal Government Releases COVID-19 Vaccination Requirement Rules: CMS and OSHA Outline Requirements for Certain Health Care Providers and Certain Employers

Written by Scott Moore on . Posted in Government Affairs, Regulatory.

by Scott Moore, J.D. & Kathy Lester, J.D. M.P.H.

Today, the Occupational Health and Safety Administration (OSHA) and Centers for Medicare & Medicaid Services (CMS), released the highly anticipated mandatory COVID-19 vaccination regulations for employers with 100 or more employees and new COVID-19 vaccination requirements in the Conditions of Participation (COPs)/Conditions for Coverage (CfCs).

OSHA COVID-19 Vaccination Regulations

A summary of the new rules can be found on the OSHA website.  Under this latest rule, OSHA stated that any employer who is subject to the Healthcare ETS released in June, 2021 is not subject to the Vaccination and Testing ETS.  This would include many EMS employers.  However, healthcare employers should refer to the Healthcare ETS to ensure that they are in compliance with those requirements.

It is important for EMS employers to note, where they have “healthcare support services”, as defined under §1910.502(vi) of the Healthcare ETS, that are not subject to the Healthcare ETS because these employees are segregated in non-healthcare settings (stand-alone administrative facilities), those employees will be subject to the requirements Vaccination and Testing ETS.

There was nothing in the latest ETS that prevents employers from instituting a mandatory vaccination requirement for its employees.  Many EMS employers are already required to mandate vaccination under a state or local law.  These employers may continue to require vaccinations for its employees.

CMS COVID-19 Health Staff Vaccination Rule

CMS also released an Interim Final Rule with Comment (IFC) governing health care staff vaccination requirements, as well as a Press Release, Fact Sheet, and Frequently Asked Questions.  While the IFC regulations do not directly apply to ground ambulance suppliers, the definition of staff that includes individuals contracted with or that have other arrangements with facilities directly regulated will be indirectly subject to the rules through their arrangements with the facilities.  For example, an EMS service that has no contract or arrangement with any of the directly covered health care facilities listed below should not be subject to the CMS requirements.  However, a ground ambulance service that has a contract with a nursing home to provide interfacility transports, for example, would be indirectly affected because of the requirement on the nursing home to ensure that contractors meet the vaccine requirements.  Additionally, there the regulations do not prevented a health care facility from creating their own requirements on vendors that do not have an existing contract with the facility.

The ICF amends the existing Conditions or Participation / Conditions for Coverage for the following facilities:

  • Ambulatory Surgery Centers;
  • Community Mental Health Centers;
  • Comprehensive Outpatient Rehabilitation Facilities;
  • Critical Access Hospitals;
  • End-Stage Renal Disease Facilities;
  • Home Health Agencies;
  • Home Infusion Therapy Suppliers;
  • Hospices;
  • Hospitals;
  • Intermediate Care Facilities for Individuals with Intellectual Disabilities, Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services;
  • Psychiatric Residential Treatment Facilities (PRTFs);
  • Programs for All-Inclusive Care for the Elderly Organizations (PACE);
  • Rural Health Clinics/Federally Qualified Health Centers; and
  • Long Term Care facilities.

The IFC requires facilities to develop and implement policies and procedures to ensure that all staff are fully vaccinated for COVID-19.  Exclusions from the requirement are permitted for staff (or contactors) who have pending requests for, or who have been granted, exceptions to the vaccine requirements or those staff for whom COVID-19 vaccinations must be temporarily delayed, as recommended by the CDC, due to clinical precautions and considerations.

Staff is defined to include employees, as well as licensed practitioners, students, trainees, volunteers, and “[i]ndividuals who provide care, treatment, or other services for the facility and/or its patients, under contract or by other arrangement.”

The IFC excludes (1) staff that exclusively provide telehealth/telemedicine services outside of the facility setting and that do not have direct contact with patients and (2) staff that provide support services exclusively outside of the facility setting and that do not have direct contact with patients.

The IFC defines an individual as fully vaccinated when 2 weeks or more has passed since the staff completed a primary vaccination series for COVID-19.  That can be either the administration of a single-dose vaccine or the administration of all required doses of a multi-dose vaccine.  It does not include booster shots.

Facilities directly regulated by the COPs/CfCs will have to have policies and procedures to implement the requirement.  Among these requirements is a process for ensuring the implementation of additional precautions, intended to mitigate transmission and spread of COVD-19, for all staff (and contractors) who are not fully vaccinated.  There are also contingency planning requirements and documentation and tracking requirements.

The IFC provides facilities 30 days to make sure that staff have received at least the first dose of a primary series or a single dose of COVID-19 vaccine prior the staff providing any care, treatment, or other services for the facility and/or its patients.  Within 60 days, the facility must ensure that staff have completed the primary vaccination services (except for those who have been granted an exemption or exclusion).

CMS will enforce the regulations through the existing onsite compliance review process with state survey agencies. Accreditation organizations will also be required to update their survey processes.  If a facility is not in compliance, the existing enforcement remedies related to the COPs/CfCs, which can include termination from the Medicare program, will apply.

The rule preempts state law under Article VI § 2 of the U.S. Constitution.

The rule takes effect November 5, but stakeholders have 60 days to provide comments with comments due by January 4, 2022.

 

             

 

OCR Issues Guidance on HIPAA, COVID-19 Vaccinations, and the Workplace

Written by Scott Moore on . Posted in Human Resources, News.

Today, the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) issued guidance to help the public understand when the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule applies to disclosures and requests for information about whether a person has received a COVID-19 vaccine.

In the guidance, OCR reminds the public that the HIPAA Privacy Rule does not apply to employers or employment records. The HIPAA Privacy Rule only applies to HIPAA covered entities (health plans, health care clearinghouses, and health care providers that conduct standard electronic transactions), and, in some cases, to their business associates.  The HIPAA Privacy Rule applies to most EMS providers but only as it relates to it’s patient’s Protect Health Information (PHI).

Today’s guidance addresses common workplace scenarios and answers questions about whether and how the HIPAA Privacy Rule applies. The Privacy Rule does not apply when an individual:

  • Is asked about their vaccination status by a school, employer, store, restaurant, entertainment venue, or another individual.
  • Asks another individual, their doctor, or a service provider whether they are vaccinated.
  • Asks a company, such as a home health agency, whether its workforce members are vaccinated.

Generally, the Privacy Rule does not regulate what information can be requested from employees as part of the terms and conditions of employment that an employer may impose on its workforce

The Privacy Rule does not prohibit a covered entity or business associate from requiring or requesting each workforce member to:

  • Provide documentation of their COVID-19 or flu vaccination to their current or prospective employer.
  • Sign a HIPAA authorization for a covered health care provider to disclose the workforce member’s COVID-19 or other vaccination record to their employer.
  • Wear a mask–while in the employer’s facility, on the employer’s property, or in the normal course of performing their duties at another location.
  • Disclose whether they have received a COVID-19 vaccine in response to queries from current or prospective patients.

OCR stated that they are issuing this guidance to help consumers, businesses, and health care entities understand when HIPAA applies to disclosures about COVID-19 vaccination status and to ensure that they have the information they need to make informed decisions about protecting themselves and others from COVID-19.

More details about the latest guidance on HIPAA, COVID-19 Vaccinations, and the Workplace may be found at https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/hipaa-covid-19-vaccination-workplace/index.html.  If you have questions regarding what information you may or may not share relative to COVID-19 vaccinations, please contact the AAA for assistance.

 

New Guidance on COVID-19 Workplace Safety for Federal Contractors

Written by Scott Moore on . Posted in Employee Wellness, Regulatory.

This week, the Safer Federal Workforce Task Force released new guidance on COVID-19 workplace safety protocols for Federal contractors and subcontractors.  On September 9, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which directed executive departments and agencies to ensure that all federal contractors and subcontractors comply with all guidance published by the Task Force. These workplace safety protocols will apply to all covered contractor and subcontractor employees in covered contractor workplaces even if they are not working on Federal Government contracts.

Overview of Workplace Safety Protocols for Federal Contractors and Subcontractors

Pursuant to the guidance issued this week, and in addition to any requirements or workplace safety protocols that are applicable because a contractor or subcontractor employee is present at a Federal workplace, Federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:

  1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to a medical or religious accommodation;
  2. Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
  3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

The guidance provides details regarding who is included under these new rules.  Under the latest guidance, a “Covered Contractor Employee” means any full-time or part-time employee of a covered contractor” working on” or “in connection with” a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract, except for those employees who only perform work outside the United States or its outlying areas.  This means that all ambulance service employees, who perform work related to or in connection with the contract, such as dispatchers, human resource and billing personnel, training staff, etc. are subject to the new requirements.  This includes employees working from remotely or from home, who are performing work in connection with the contract.

Under the guidance, a “Covered Contractor Workplaces” are locations controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract.  This includes those workplaces such as ambulance stations, administrative offices, etc.

Vaccination of Covered Contractor Employees

Covered contractors must ensure that all their covered employees are fully vaccinated for COVID-19 unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than December 8, 2021.  The guidance detailed that vaccination is required of all employees, even if they have previously been infected with COVID-19.

Proof of COVID-19 Vaccination

Under this guidance, the contractor or subcontractor must review the covered employee’s documentation to prove vaccination status.  The guidance identifies the list of acceptable documents an employee can furnish to prove vaccination, including:

  1. Copy of Immunization Record from a healthcare provider or pharmacy
  2. Copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published 9/3/2020)
  3. Copy of Medical Records documenting the vaccination
  4. Copy of Immunization Records from a public health or State Immunization Information System
  5. Copy of any other official documentation verifying vaccination with information of:
    1. Vaccine name
    2. Date of administration
    3. Name of healthcare professional or clinic site administering the vaccine

*Digital copies of these records are acceptable (jpg, scanned PDF, etc.)

The guidance specified that a signed attestation by the employee is not acceptable proof of vaccination.  Additionally, the guidance stated that recent COVID-19 antibody tests do not satisfy the requirements under these rules.

Masking and Physical Distancing While in Covered Contractor Workplaces

Covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace. The guidance provided more details on these masking and physical distancing requirements.  These include requiring unvaccinated individuals to mask indoors and in certain outdoor settings regardless of COVID-19 transmission levels.  Contractors are required to monitor the community transmission levels on the CDC COVID-19 Data Tracker County View website on a weekly basis.

COVID-19 Coordinator Designation

Covered contractors must designate a person or persons to coordinate implementation of, and compliance with, these workplace safety protocols at covered contractor workplaces. Their responsibilities to coordinate COVID-19 workplace safety protocols may comprise some or all of their regular duties.  This individual can be the same person who is designated under other state or local COVID-19 safety requirements.

Finally

The guidance makes it clear that the rules applicable to all federal contractors and supersedes any state or local rules or regulations that are contrary to these provisions.  That means that any rules that prohibit mask or other COVID-19 related safety mandates, or otherwise contradict the rules under this guidance will not excuse a federal contractor’s obligations under these rules.

The guidance will be finalized by the Office of Management & Budget in the coming days.  In the meantime, if you have any questions or need assistance, contact the AAA at hello@ambulance.org.

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