COVID-19 Vaccine Healthcare Mandate

UNDERSTANDING EXECUTIVE ORDERS

Throughout the COVID-19 pandemic, it has been the Band's priority to keep Band Members safe. As a federally recognized American Indian tribal government, the Band is also responsible for complying with all applicable federal laws related to pandemic response. In January, two Executive Orders were signed by the Chief Executive to make sure the Band Is In full compliance with federal law. The first Executive Order, 2022-01, mandated vaccination or weekly testing of all Band employees In response to a federal rule that required the Band to do so. That federal rule came from the Occupational Safety and Health Administration (OSHA). The day after this Executive Order was signed by Chief Executive Benjamin, the U.S. Supreme Court struck down that OSHA rule, which is why Chief Executive rescinded Executive Order 2022-01.

There was a second federal vaccine mandate that came from a different federal agency called the Center for Medicare and Medicaid Services. This federal agency required all health facilities that receive Medicare or Medicaid funding to show their employees are fully vaccinated or risk loss of federal funding. With this mandate, there is no weekly testing option unless the employee qualifies for a medical exemption or can demonstrate that vaccination would conflict with their sincerely held religious beliefs. The U.S. Supreme Court voted to uphold that vaccine mandate, which only applies to healthcare workers working In facilities that receive Medicare or Medicaid funding. This includes the Mille Lacs Band of Ojibwe and most other Indian tribes across the country. This Is why a second Executive Order was recently signed by Chief Executive Benjamin that only applies to healthcare workers.

The most recent Executive Order 2022-03 that requires all Mille Lacs Band healthcare staff to be vaccinated was signed on January 21, 2022. This Executive Order has a direct effect on the Health and Human Services (HHS) areas as follows: Ne-Ia-Shing clinics, Public Health, Dental and the ALUs.

Here is a summary of what happened and what the healthcare mandate currently in effect — Executive Order 2022-03 — is all about.

SUMMARY

On November 4, 2021 the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) mandating employers of 100 or more employees to implement a COVID-19 vaccination or testing requirement for all employees in the work force. Employers were given up to January 4, 2022 to have steps in place that would bring them into compliance with the OSHA mandate. On January 13, the U.S. Supreme Court struck down that OSHA mandate, but it upheld a requirement from the federal Center for Medicare and Medicaid Services (CMS) that states all healthcare workers in facilities that receive funding from Medicaid and Medicare must be vaccinated in order for the facilities to continue receiving said funding.

A unique Band law (Title 18, Section 440) requires the Band to adopt all OSHA rules and regulations, including OSHA's emergency temporary standards. Therefore, an Executive Order 2022-01 was signed by Chief Executive Benjamin on January 12 that required all Band employees to either be vaccinated against COVID-19 or consent to weekly testing based on the requirement issued by OSHA. Chief Executive Benjamin discussed this during her State of the Band Address. In October, she conducted a survey of Band Elders which found that nearly over 80% of Band elders supported vaccination of all Executive Branch employees. However, since the U.S. Supreme Court struck down OSHA’s mandate, that Executive Order was rescinded on January 13.

While the U.S. Supreme Court did block the OSHA mandate, it upheld a second vaccine mandate that came from the federal Center for Medicare and Medicaid Services (CMS), which was specific to healthcare workers in facilities receiving Medicare or Medicaid funding.

In its opinion allowing the CMS vaccine mandate to go into effect, the court noted that CMS has broad powers to require that facilities participating in the Medicare and Medicaid programs comply vaccination requirement. The court specifically stated, “requirements as [CMS] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” The court held that CMS reasonably concluded that a COVID-19 vaccine mandate was necessary to protect patient health and safety because “COVID-19 is a highly contagious, dangerous — and especially for Medicare and Medicaid patients — deadly disease.”

In order to continue to receive services and funding from CMS, the Band must also be in compliance with the CMS vaccine requirements. On Friday, January 21, 2022, Executive Order 2022-03 was signed requiring that all healthcare workers employed by the Mille Lacs Band of Ojibwe be vaccinated against COVID-19. The Executive Order and Vaccination Policy are posted on the Band’s website.

This Executive Order was issued after federal attorneys advised the Band that as a recipient of Medicare or Medicaid funding, the Band is required to comply with the vaccine mandate issued by the CMS on November 5th, 2021 or risk loss of federal funding. CMS will begin enforcement soon and the hard deadline for showing good-faith effort to comply with this mandate was January 28, 2022.

This will affect the Mille Lacs Band Health and Human Services areas as follows: Ne-Ia-Shing clinics, Public Health, Dental and the Assisted Living Units.

The Commissioner of Administration and the Commissioner of Health and Human Services have implemented a vaccination policy to ensure all ne-Ia-Shing clinics' providers and staff members are vaccinated against COVID-19.

The policy defines to whom the policy applies and states in part:

• Regardless of clinical responsibility or patient contact, this policy applies to the following Ne-Ia-Shing Clinic, Dental, Public Health, and Assisted Living Unit staff who provide any care, treatment, or other services for the clinic and/or its patients:

  • Employees;

  • Licensed practitioners;

  • Students, trainees, and volunteers; and

  • Individuals who provide care, treatment, or other services for the clinic and/or its patients, under contract or by other arrangement.

• This policy does not apply to the following clinic staff:

  • Staff who exclusively provide telehealth or telemedicine services outside of the clinic facilities and who do not have any direct contact with patients and other staff specified in subsection (a) of this section; and

  • Staff who provide support services for the clinic that are performed exclusively outside of the clinic facilities and who do not have any direct contact with patients and other staff specified in subsection (a) of this section.

• This policy will become effective when adopted by Executive Order and will remain in effect until rescinded by Executive Order.

• This policy may be amended as necessary to ensure the mitigation of the spread of COVID-19.

Employee privacy is of the upmost importance to the Band. The Commissioner of Administration will track and securely store the vaccination status of all staff members, including whether they are fully or partially vaccinated; the booster status of all staff members; and all requests and any documentation related to such requests for an exemption under Section 5 of the policy, including whether such requests have been granted.