The Compliance Divas Podcast
Our podcast covers current topics such as infection prevention and control, OSHA and HIPAA compliance for dentistry. We discuss the latest regulatory information, answer frequently asked questions and give suggestions for dental practices to make compliance easy and sustainable. The Compliance Divas are a trusted source for consistent, accurate information based upon current guidelines, standards, science, and recommendations.
The Compliance Divas Podcast
Episode #32 OSHA's Emergency Temporary Standard #2 and Mandates
Use Left/Right to seek, Home/End to jump to start or end. Hold shift to jump forward or backward.
On November 4, 2021 OSHA issued Emergency Temporary Standard #2. In this episode, the Divas provide an overview of this standard and what dentistry might expect.
Welcome. I'm Leslie Cannon. I'm Mary Gavoni. I'm Linda Harvey. I'm Olivia Juan. And together we are the Compliance Divas. Welcome to the Compliance Divas Podcast. I'm Mary Gavoni and I will be your moderator for this episode. We bring clarity and simplicity to compliance by navigating the regulatory world to keep you on course. You can subscribe to the Compliance Divas podcast through your favorite podcast channel or on our website, thecompliancedeevas.com. Any resources that we mentioned during this episode can be accessed on the ComplianceDivas.com website, and any questions that you may have can be submitted to support at thecompliancedevas.com. So our topic today is vaccine mandates. There's been a lot of confusion about vaccine mandates for workers, specifically for dental health care workers or work healthcare workers in general. And what we want to do is just take a high-level view of these mandates and help our listeners to know how they should go about finding out if there's something that applies to them in terms of a COVID-19 vaccine mandate. One thing I would like to remind our listeners about is that the information on this podcast is current as of November 22nd, 2021. Things may change as you well know. So we always encourage you to check our resources on our webpage to make sure that there aren't any other updates that you need to know about in your particular state. So on November 4th of this year, OSHA issued its second emergency temporary standard. And this temporary standard stated that employers with 100 or more employees must implement a vaccine, a COVID-19 vaccine mandate for those employees, or accommodate those who do not want to be vaccinated with testing on a weekly basis, which could be then modified by a state OSHA plan. That emergency temporary standard was challenged in the federal court system and it was stayed by the federal courts and also stayed in an appeal of the original stay of that vaccine mandate. So that is on hold for now. We don't know what will happen in the future. Something may come back in terms of a mandate, but it didn't really affect a lot of dental practices because most dental practices don't have a hundred or more employees. Those might be educational institutions that have employees like in a dental school or perhaps in a DSO setting and those types of things, but not most practices. Then just the next day, the Center for Medicare and Medicaid Services issued a mandate for vaccines for healthcare workers in many healthcare facilities. And there are some dental practices that may actually fall under the requirements of that standard. So, Linda, can you explain to us a little bit more about the Center for Medicare and Medicaid Services mandate and how it does apply to dentistry?
SPEAKER_01Well, thank you, Mary. This is such a confusing topic because of all the things you just mentioned, the stays and the delays and just the challenges, all the legal challenges going on. So CMS, the Centers for Medicare and Medicaid, did come out with that regulation and statement. And they said that, you know, this does apply to all medical facilities. And medical facilities in this case, or healthcare facilities, if I should say that instead, would be any facility that accepts payments from the federal government, not just Medicare and Medicaid, but other types of federal dollars that are tied to federal worker and retirees, postal workers, veterans, any of those groups, chip example, those all come from dollars that are tied to CMS. So that makes it really clear in some areas, such as federally qualified healthcare centers, where they accept those funds. And also they may have a tendency to have more than 100 employees, as do you know large dental service organizations. However, the big gray zone that exists, Mary, and what happens for the rest of us in dentistry, even though we don't have 100 or more employees in the majority of dental practices, more offices are accepting funds from federal dollars, and they don't realize that because it's the funds aren't coming from a check cut directly from CMS. The funds are coming through a third-party payment organization or TPA, third-party payment administrator, in which it has an insurance company's name on it. So, well, this company isn't tied to Medicare or Medicaid, but they have the agreement with Medicare and Medicaid. So private practices kind of fall in that chain of command if you follow where the dollars come from. So I'm gonna be eager to see how this plays out with the next round of uh litigation and things, Mary, to see where do we fall in dentistry? So, in the meantime, as you said, as of this date, November 22nd, this is what we know today.
SPEAKER_02Thanks, Linda. That is such an important thing to know. Sort of stay tuned, but also we're gonna give you some resources um to know what is happening in your state. And Leslie, our resident California expert Diva, um, is going to give us some information about the California mandate because that was the first for healthcare workers across the country. So, Leslie, what do we need to know about California?
SPEAKER_00Thank you, Mary. California does require COVID vaccination or weekly testing, according to a public health officer's orders on July 26, 2021. So, what this means for dental health care workers is that we either must get vaccinated, and that includes dentists who are employers, not employees, must either get vaccinated or show proof of weekly COVID vaccination, uh COVID testing. And how this applies in certain counties in California, for example, in Los Angeles County and San Francisco area, there is they've taken the option of weekly testing away. So all dental health care workers, all healthcare workers must be vaccinated, whether you're a clinical team member or whether you work in the administrative area, if you're an insurance biller or a bookkeeper, for example, in a dental setting, you are required to get vaccinated without the option of having the weekly COVID testing. So with California, we also have something called an aerosol transmissible disease standard. And many people are confused by the fact that they've been told that they are not subject to the era to the ETA or the emergency temporary standard for healthcare workers, uh, the federal ETA. And actually in California, we have had an aerosol transmissible disease standard in place since 2009. And many of the components of the healthcare worker ETA are also components of the aerosol transmissible disease standard. So the way I like to explain this to dental professionals, it's similar to this. If you expect to get a tax refund after you file your tax return, you have to file a tax return in order to get that refund. So with the emergency temporary standard, you have to screen patients in order to be exempt from that standard. And so while that doesn't have a lot to do with the vaccination mandate, one of the screening questions that we are allowed to ask our patients is whether they've been vaccinated or not. And I know that some patients decline to respond to that or get angry to that question, but we can always fall back on OSHA requires us to screen our patients prior to performing dental treatment, or at least in California, for aerosol transmissible diseases. And we can use that answer on our screening platform. And it also is helpful for us in the event that there is an outbreak, we have a way to do a little bit better contact tracing. So in California, there's still the mandate for healthcare workers, particularly dentistry, to either be vaccinated or get uh weekly COVID testing, except in Los Angeles County and in San Francisco.
SPEAKER_02Thank you for that, Leslie. And to build on that, our other um fellow diva, Olivia, is not able to be here with us today, but she wanted us to make sure that we emphasize that there are other states besides California that have mixed vaccine mandates for healthcare workers. And every dental practice needs to be aware of whether or not there are orders from a state health officer, as in California, a state public health department. Um, could be something that might come from a state dental board or some other regulatory agency or even from a state dental plan, although we haven't seen those from OSHA yet. So we will put a resource in the resources section on our website that breaks down all of the different states that do have requirements, and there are little variants on many of those. Now, some states, and you may be aware of that, your particular state may have a ban on vaccine mandates, but don't assume that that ban applies to healthcare settings, because there are some states where the ban may be a mandate for all general types of employers, but not necessarily for healthcare settings. So we encourage you to tap into that resource that we've provided and know that it is current as of today, November 22nd, and things may change. Linda and Leslie, can you discuss a little bit about what employers ought to do? Because one of the things that we really didn't mention yet is the fact that even if there isn't a state mandate or a federal mandate for vaccines, the Equal Opportunity Employment Commission has stated that employers may mandate in their employment setting that workers become vaccinated as long as they are making accommodation. So let's address that, whether um employers can have their own mandate absent anything from their state.
SPEAKER_01I would love to talk about that for just a second because as a matter of fact, on November 17th, the EEOC did update their website and they've got a new document posted here. So just we'll put the link to that document on our resources page, but there's an introduction to some technical assistance and questions and answers. And so the important thing to remember is that first we have to identify whether dental practice falls under the guidelines of the American with Disabilities Act. And that applies to private employers with 15 or more employees. It also applies to state and local government employers, employment agencies, and labor unions. So wherever dental practice is within their state, looking at state laws and determining what applies there, as well as if they have 15 or more employees, then they may be subject to the American with Disabilities Act. And as you mentioned, Mary, the state laws are very differing too. And I'm trying to keep up with what's happening in my state, Florida, because just last week, here in November 2022, 2020, pardon me, 2021, we're still here, uh, Governor DeSantis signed legislation that limits vaccine mandates mandates in our state. And it would ban businesses from imposing COVID vaccine mandates unless they provide certain exemptions. And the exemptions in Florida are a little bit different than the federal ETS. So, in a nutshell, Florida requires businesses to exempt employees from mandatory vaccination policy one, if they have COVID immunity from a prior infection, or they're tested periodically for the virus, or they choose to wear the personal protective equipment provided by the company. I don't see that outlined in the news briefs, but I'm sure and hopefully that includes N95 respirator masks for the ultimate uh safety for everyone. But if in Florida, under this new law, if a business fires an employee based on their vaccination status, they can be fined. And if they have um more than 100 employees, that could be a $50,000 fine. So it's very interesting to see how this is um evolving. And it's very important that our listeners first look at their state laws as well, talk to their state health department, look to the Dental Association for information on their state, and also follow the federal laws at the same time, Mary.
SPEAKER_02Great clarification, um, Linda. Thank you. Leslie, do you have some additional comments or information to share on this? Well, yes.
SPEAKER_00Uh, Mary, you know, it's important to recognize that employers may be liable if they terminate an employee for not getting vaccinated. We don't know what lawsuits are going to play out in the future. So in California, the question comes: what are the options for employers who have employees who refuse vaccination and refuse weekly testing? Can they be fired? And so one option is to place an employee on unpaid leave should they refuse to comply with the law. And the other bit of advice that California Dental Association issues is that dentists are encouraged to seek legal advice before separating an employee for failing to comply with an order. Um, so the questions keep coming up, you know, what about those people who refuse vaccination and weekly testing? Uh, do we have to terminate that individual? And then another question I think people uh want to know if they are the terminated individual, are they eligible or do they qualify for unemployment because this is a public health order? And uh it's something again where an employer should seek the advice of legal counsel or an employment law attorney before actually going to the step of terminating. It is kind of a confusing type of question. And it the mandate does apply to all vaccinated, unvaccinated, and incompletely vaccinated people when it comes to the testing. Um, in my opinion, I don't see how that should be something that someone will refuse. Uh, if you're given a choice, if you don't want to be vaccinated, it seems logical that you would be willing to submit to weekly testing, but then there are those who don't want to do that either. So uh the requirement for employers is to have proof of vaccination or require employees to be tested. And then you what do you do if you have someone that doesn't want to be? The other thing that comes up uh is the questions that patients will ask. And I just wanted to bring that to light for a moment, too, because we've had this conversation before in our other podcasts. But uh there's uh it's a good question for a patient to ask are your team members fully vaccinated? Myself, if I was a patient, I would want to be worked on by a vaccinated individual as well. I would feel that I was making a proactive step in my health care by assuring my safety in the chair. But um there's it's not the best position to put a dentist employer in to ask about uh employees' health. So one day to respond to patients when they ask that question about team member vaccination status is to let them know that health information of the dental team is confidential and is subject to privacy laws, just like it is for patients. And of course, it's not a HIPAA issue where you know a lot of dental offices mistakenly will throw the HIPAA card up and say that that's the reason we can't answer that question. It is uh related to privacy.
SPEAKER_02Thanks, Leslie. You raised such a good point. And and I think as we've been talking during this episode, we have, I think, demonstrated the fact that there is a lot of confusion out there about whether we can be mandated to be vaccinated or we can't be. And it really is a moving target. Things will continue to evolve, things will continue to change. And so it is the responsibility of every dental practice to make sure that they know what are the requirements or mandates or lack of mandates in their particular state. I spoke to a group um just last week in a state where there is a vaccine mandate, and no one was aware that there actually was a vaccine mandate for healthcare workers. So we need to stay on top of that. We need to make sure that we know. Um, and also, sort of one um sort of closing kind of comment that I would have here is that dental health care workers are considered to be those that are working in high-risk settings because of aerosol exposure. And so if you are vaccinated, you do fall in that category to receive a vaccine booster. There's plenty of information on the CDC website about which booster you can get. And essentially, you can get any one of the three vaccine formulas. So if you haven't had a booster, you may want to consider that. So, Divas, any closing comments before we wrap up this episode?
SPEAKER_00Leslie. Yes, I just wanted to remind everyone, uh, we had a podcast, uh a human resources podcast. And when it comes to the confidential employee file on vaccination records, those are to be kept separately from the employee's payroll information. And I know that may seem confusing. I verified this again with uh our expert Adrian Twigg, and she confirmed that uh even a small practice, maybe a dentist who has uh four or five employees, and they have a file on each employee for payroll purposes, hepatitis B vaccination, et cetera, she said that medical records are to be kept separately and securely locked up. And even if it's just one person who has access to the employees' records. So if everyone could remember that when you put together your vaccination documentation, that proof of vaccination and boosters as well should be stored separately than employee records and in a secure location, accessed only by the employer or the employer's appointee.
SPEAKER_02Great. Thanks, Leslie. Linda.
SPEAKER_01I'm so glad you brought this topic up today, Mary, because there's just been so much confusion. And while we've shed some light, I know we're leaving some gray areas. However, I think there's some great takeaway points today. And we've got plenty of resources that we'll post on our website. So thanks for bringing this topic up today.
SPEAKER_02Great. Thank you, Linda. And thank you to our listeners. Please know that if you do have questions, you may submit them to support at thecompliancedeevas.com. Resources will be in the resources section on the compliancedevas.com website. And we again thank you for tuning in. We bring clarity and simplicity to the regulatory world by navigating all the compliance issues to keep you on course. Thank you for joining us. We'll see you next time.