As COVID-19 laws, medical information, and policies continue to emerge, the insurance industry is moving quickly to keep up. Executive orders on the federal, state and local levels sometimes conflict in some areas of the country or industry sectors. For example, many universities have mandated vaccines for their students without testing options on their own accord.
Legal battles over these conflicts will eventually play out in the court system. In the meantime, vaccine and masks mandates are under public health argument, with a stay issued by the Fifth Circuit. However, best practice is to have a policy and be ready to comply with the mandate while the cases are addressed by the courts.
Mandates and Emergency Temporary Standards
The federal mandate by President Biden’s Executive Order 14042 requires federal employees to be fully vaccinated against COVID-19 by November 22 and federal contractors vaccinated by December 8. Additionally, the Centers for Medicare and Medicaid Services (CMS) requires participating hospitals and healthcare facilities to mandate vaccines for their employees (under threat of non-funding).1 Recently, CMS released an Emergency Temporary Standard (ETS) on November 4, 2021, requiring Medicaid and Medicare certified providers and suppliers to ensure all staff receives the first dose of the two-dose vaccine, or one-dose vaccine, prior to providing any care, treatment or other services by December 5, 2021. 2 All eligible staff must be fully vaccinated by January 4, 2022.
OSHA has expeditiously developed another ETS, covering employers with 100 or more employees to ensure workers are fully vaccinated or undergo weekly testing. As we mentioned in our recent FAQ article on the OSHA mandate 3 , the employee count is determined at the employer level, not at the individual location level. Therefore, every employee at a company with multiple locations would be subject to the mandate. The weekly testing alternative is a stop-gap intervention. Although, depending on the current community transmission rates, weekly testing may not manage spread as effectively as, for example, twice-a-week testing. Daily testing is ideal for managing spread. 4 This ETS was submitted October 12, 2021, to the Office of Management and Budget and released November 4, 2021. Recently, a US Court of Appeals for the Fifth Circuit panel issued a nationwide stay of this OSHA ETS on November 8, 2021. Due to the multiple lawsuits filed in various federal judicial circuits, the stay will be consolidated and transferred to one circuit, chosen by lottery, around November 16, 2021.
OSHA ETS(s) have historically been very few and far between. A great majority are removed through legal challenges. The vulnerability of this OSHA ETS is that COVID-19 is a public health issue, not a workplace-contained issue. But arguably, it may be one of the methods to try to attenuate the spread of COVID-19 in the interim until vaccination rates and other infection control strategies are more consistent throughout the country.
The OSHA ETS has specifically clarified that the employer is not responsible for the cost of this weekly testing for the unvaccinated.5
There are several options for unvaccinated employees that need weekly testing and who work in companies with 100+ employees as of November 4, 2021. For those living in a densely populated area where testing centers are conveniently located, it may not be too unreasonable to have employees test weekly and present proof of a negative result. Also, employees can conduct the tests themselves using home testing kits, but this requires a high degree of trust. There are home rapid test kits with video proctors that can verify the test at home. But these are costlier and waiting times for a live proctor vary.
Alternatively, employers can conduct testing on-site, which would be most convenient and credible. The employer would control the process with minimal inconvenience to the employee and possibly minimize cost if the employer underwrites the cost. In procuring a COVID-19 testing vendor, employers must ensure the entity is operated and administered by qualified clinical professionals with experience in COVID-19 testing and diagnostics. They should also have the appropriate and current permits, licenses, insurances, consent forms and competencies to interpret results and manage “gray area” decisions.
Meanwhile, in NYC, the Keys-to-NYC Vaccine law requires indoor dining, bars, fitness centers, entertainment, theatres and certain meeting spaces (i.e., hotel banquet halls), to require proof of vaccination of all employees, contractors, volunteers, interns and customers, (except vendors conducting deliveries and pick-ups). 6 Thus, the weekly testing of unvaccinated employees’ aspect of this OSHA ETS is moot for such employers and any other employers who come under similar local vaccine mandate laws across the country.
Proof of Vaccination
Employees must show they have their first dose by December 4, 2021. Employees are considered “fully vaccinated” two weeks after receiving the second dose of Pfizer or Moderna or after one shot of J&J’s Janssen 7 by January 4, 2022.8 In the future, this may also include booster shots. Mixed-brand boosters are also on the horizon in medical discussions, but not on the policy or legal front yet.
The list of acceptable vaccines will change as trials are completed and approvals granted by different governing bodies, i.e., FDA and WHO (for example, the WHO approved a vaccine from India November 4, 2021).
Pfizer, Moderna, J&J, AstraZeneca, Novovax, Sinovac, and Sinopharm-BBIBP (also referred to as BIBP) are acceptable. However, Sinopharm-WIBP, Sputnik V, Sputnik Light and Covaxin are not approved. There are many new types of vaccines coming in the pipeline from different countries. This will likely be the future of COVID-19 vaccination management. The population will likely require annual shots, much like the flu vaccine, due to the quickly changing nature of the virus. This may become a routine part of the vaccine verification system in the future.
Confirming Proof of Vaccination
Employers/operators can, and should, be serious about verifying vaccination proof authenticity. It can be via the CDC vaccine card (which can be forged), State vaccination Record (same ease of forgery), COVID-19 apps (many merely reinvented the camera that can upload a picture of a fake card). Certain state apps like the NYS Excelsior app are digitally linked to the NYS Vaccine Record database, which is more secure. However, the state apps can be falsified if someone steals the email/identity and vaccination data (that requires more effort.) Although the more secure apps deter fraud and prove authenticity better, there are personal data privacy concerns. Lost or stolen cards should be replaced by the employee. A signed declaration can be used as a last resort if the employee fails to obtain such proof despite attempts to replace vaccine documents from the original source.
Methods Against Fraud
There are existing, and new laws deployed to address and increase penalties for fraud on all levels. For instance, forging a government agency seal is a felony, punishable up to five years in jail. (Title 18 of the US Code, Section 10-17). Of course, the severity and extent of fraud involvement will determine the sentence, i.e., forging multiple cards or stealing them for sale, vs. buying one for individual use. Section 17(g) of the OSH Act provides for criminal charges against anyone, not just employers, who “knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Act.” New York State is passing a law, Senate Bill S4516C, making the use of a false vaccine card a Class E felony. Earlier this month, a NYS man was charged with second-degree possession of a forged instrument, which qualifies for a Class D felony in NY state.
To ensure authenticity:
- Someone trained should be reviewing these documents and proofs.
- Proof should be carefully scrutinized and possibly verified by contacting the vaccination center to confirm the validity, if not in every case because of the volume, then at least randomly to ensure some level of validity. This sends a message of accountability to those considering using falsified documents and gives employers some level of confirmation.
- Fraudulent or suspected fraudulent vaccine proofs should be reported to the US Department of Health and Human Services Office of Inspector General. 9
The OSHA ETS does not require employers to verify or scrutinize vaccination documentation. However, to vet out obvious forgeries, staff reviewing proof of vaccine can look for:
- The handwriting for the two doses should mostly be different, completed by a different person.
- The timing/dates between the two doses should be appropriate for the type of vaccine, 21 days apart for Pfizer, 28 days (give or take five) apart for Moderna.
- A fully printed card is a red flag since much of the information is handwritten.
- Ensure the name on the card matches with the government-issued photo identification provided.
To find immunization records by state, go to the CDC Immunization Information Systems. Various states allow for different apps, and some are merely picture wallets; others are linked to the state database (i.e., New York and California) and provide PINprotected QR codes. MyIRMobile was available in eight states and was rolling out to others but is temporarily suspended. This is a moving target, especially with those people who received vaccines from out of state or country.
Employers are to maintain a roster of their employees’ vaccination status (partial or full) and test results, with names, vaccine types, inoculation dates, name of medical center/physician/venue, etc. These records are considered medical records and should be treated accordingly.
There is practically no medical condition that is contraindicated for vaccination. However, there may be valid medical reasons to delay initiation or continuation of vaccination series due to a COVID-19 infection. Contraindicated conditions for the vaccine are extremely rare, especially in adults (i.e., Guillain-Barre Syndrome). Vaccines are recommended for people with allergies, autoimmune disease and compromised immune systems; they are even recommended to have the third dose or booster. If someone is allergic to a component in a certain vaccine, then there are other alternative vaccines that do not have that component, i.e., PEG. 10 Serious mRNA vaccine allergies are rare; there is a rate of 0.01% documented allergies to PEG. PEG is present in all sorts of everyday products, medications, cosmetics, etc. Many more different vaccines are rapidly being developed in clinical trials, going through approval processes and used internationally.
There is a scientific debate over whether – and how – to accept natural immunity or previous COVID-19 infection in conjunction with vaccination. But the US is not entertaining that currently, as are other countries and airlines that accept vaccination certificates, negative tests, or recovery certificates (i.e., Israel, the EU). The US is only accepting vaccination mandates or regular testing.
The previous religious exemptions are also shrinking as major religious groups are officially accepting the vaccine. As of now, it may be easier to determine what is a “religion” and more difficult to determine if it is a “sincerely held belief,” but you can ask employees for clarification.
These medical and religious exemptions operate under ADA and Title 7 Discrimination rules.11 It is not a complete pass. Employers can determine that it is financially crippling, logistically burdensome, impairs workplace safety to other employees, clients, third parties, especially the medically vulnerable, diminishes operational efficiency, places hazardous and burdensome work on other employees unfairly, to operate with weekly testing or certain accommodations, and thus determine that you need to a policy that requires a vaccine mandate for all on-site employees. Employees who do not comply will eventually be terminated and not receive unemployment benefits unless the state has a particular law that intervenes (currently, only Iowa has). This is especially the case if the number of employees requiring accommodations exceeds what your operation can accommodate.
For more information, please contact us at 1-800-638-8048 or OHS@NFP.com.
- Medicare to Move Cautiously on Nursing Home Vaccine Penalties | Bloomberg Law
- Biden Harris Administration Issues Emergency Regulation Requiring COVID-19 Vaccination Health Care | CMS.gov
- FAQs on OSHA ETS on Employer Vaccination and Testing Mandate | NFP Compliance
- Testing Non-healthcare Workplaces | CDC.gov
- COVID-19 Vaccination and Testing ETS Summary | OSHA.gov
- Vaccination Proof for Indoor Activities (Key to NYC) | NYC.gov
- Requirement for Proof of COVID-19 Vaccination for Air Passengers | CDC.gov
- Submit a Hotline Complaint | OIG.HHS.gov
- COVID-19 Vaccines for People with Allergies | CDC.gov
- What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | EEOC.go