EMS Lawline: President Biden’s COVID-19 Action Plan and Its Impact On EMS Agencies

By Christie Mellott, Esq., EMT-B
By Christie Mellott, Esq., EMT-B

On September 9, 2021, the White House issued Path Out of the Pandemic – President Biden’s COVID-19 Action Plan, which it deemed to be a new six-pronged approach “to combat COVID-19 and save even more lives in the months ahead, while also keeping schools safe, and protecting our economy from lockdowns and damage.” Several provisions will impact EMS and ambulance agencies, and essentially require EMS agencies that participate in federal health care programs like Medicare to mandate vaccination for all staff, with limited exceptions. The six prongs of the President’s program are:

  1. Vaccinating the unvaccinated,
  2. Further protecting the vaccinated,
  3. Keeping schools safely open,
  4. Increasing testing and requiring masking,
  5. Protecting our economic recovery, and
  6. Improving care for those with COVID-19.

Under the first prong, “vaccinating the unvaccinated,” President Biden will be issuing five requirements – establishing a broad federal “vaccination mandate”. These include:

  1. Requiring all employers with 100+ employees to ensure their workers are vaccinated or tested weekly,
  2. Requiring vaccinations for all federal workers and for millions of contractors that do business with the federal government,
  3. Requiring COVID-19 vaccinations for over 17 million health care workers at Medicare and Medicaid participating hospitals and other settings,
  4. Calling on large entertainment venues to require proof of vaccination or testing for entry, and
  5. Requiring employers to provide paid time off to get vaccinated.

The requirements under the vaccination mandate are of most importance to EMS agencies. First, the White House has indicated that the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to “ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” The White House indicates that OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement, and that it will impact over 80 million workers in private sector businesses with 100 or more employees.

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Second, the President has signed a new Executive Order that extends the federal employee mandatory vaccine requirement to “all employees of all contractors that do business with the federal government.” It is our understanding that this Executive Order will be published later this month by the Safer Federal Workforce Task Force. Obviously, we will not know the exact scope of this Executive Order until it is published. But it is expected to require that employees who work on or in connection with certain government contracts be vaccinated, regardless of whether they work on federal property. This requirement will likely be limited to EMS agencies with federal contracts.

The requirement that affects EMS agencies the most is the third requirement, which expands vaccination requirements for health care settings to virtually all health care providers who receive reimbursement under federal health programs. While the President’s press release describing the requirement does not specifically mention ambulance services, CMS issued its own press release, Biden-Harris Administration to Expand Vaccination Requirements for Health Care Settings. CMS’s press release indicates that “The Biden-Harris Administration will require COVID-19 vaccination of staff within all Medicare and Medicaid-certified facilities to protect both them and patients from the virus and its more contagious Delta variant.” The “facilities” link contained in this article and in CMS’s press release takes the reader to a CMS page that defines “facilities” as specifically including “ambulances.” Further, the press release states that to combat the COVID-19 pandemic, “CMS is using its authority to establish vaccine requirements for all providers and suppliers that participate in the Medicare and Medicaid programs.”

Thus, while the wording “certified facilities” might call into question whether this vaccine requirement for health care settings applies to ambulance services and EMS agencies, we believe that it is quite likely that this requirement, when it is issued, will include EMS agencies, just as OSHA’s ETS issued back in June 2021 that applied to health care settings also included EMS agencies. CMS’s press release indicates that it is developing an Interim Final Rule with a Comment Period on the healthcare setting vaccination requirement and that it will be issued in October.

The fourth requirement under the vaccination mandate are not likely to have significant impact on EMS agencies unless the agency has a stand-by agreement with the venue holding the concert. The fifth requirement already applies to EMS agencies, as OHSA’s June 2021 ETS requires EMS agencies and other healthcare employers to provide paid time off to employees to get vaccinated.

What do these five requirements mean for EMS agencies? First and foremost, if your agency has 100 or more employees, then you can definitely expect a vaccine mandate for your employees whenever the new OSHA ETS is published and then becomes effective. If your EMS agency does not have 100 employees, but does have federal contracts, then your EMS agency can also definitely expect a vaccine mandate when the President’s Executive Order is published and then becomes effective. Finally, if your EMS agency does not have federal contracts and does not have 100 employees, then it is still highly likely that CMS’s Interim Final Rule pertaining to health care settings, which is expected to be published in October, will also include a vaccine mandate for EMS employers.

Christie Mellott has been an attorney with Page, Wolfberg & Wirth, LLC for over 21 years. She is also an EMT and worked in the healthcare industry prior to law school. She has authored or co-authored numerous articles, blogs and book chapters on a wide range of EMS employment, compliance, corporate, leadership, and risk management topics. She can be reached at: cmellott@pwwemslaw.com

For 21 years, PWW has been the nation’s leading EMS industry law firm. PWW attorneys and consultants have decades of hands-on experience providing EMS, managing ambulance services and advising public, private and nonprofit clients across the U.S. PWW helps EMS agencies with reimbursement, compliance, HR, privacy and business issues, and provides training on documentation, liability, leadership, reimbursement and more. Visit the firm’s website at www.pwwemslaw.com.  

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