Vaccine Mandates: What it Means for Employers
On January 13, 2022, the U.S Supreme Court released two per Curiam opinions regarding CMS and OSHA’s vaccination and testing requirements.
First, the Court decided to allow CMS to implement its vaccination and testing requirements as described below in this article. The Court found that CMS had the authority to mandate as a condition of participation in the Medicare or Medicaid program that providers be vaccinated or follow the prescribed testing requirements. The Court reasoned, “ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession.
This means the CMS regulation will now be enforceable in all 50 states. CMS will begin enforcement of the mandate on January 27th, 2022, for compliance with the first round of vaccine shots and then on February 28th for the second round.
However, regarding the OSHA Emergency Temporary Standard (ETS), the Court ruled this was not within OSHA’s authority; therefore, the requirements for employers with more than 100 employees will not be permitted and no longer apply.
Reference: CMS December 28th Guidance: Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination
The new compliance deadlines above apply to the 24 states previously covered by a preliminary injunction. CMS is already enforcing and surveying these requirements in all other states and territories. Since this rule is geared towards “facilities,” there is debate on whether it will be extended to individual outpatient practices that provide care outside of facility settings. Consult with your legal counsel as you implement policies, but this rule does apply to home health and hospice agencies.
Date: 11/17|2021 Approx. 3 min. read
Author: Brianna Plencner, CPC, CPMA Senior Consultant & Manager, Practice Development, HCCI
There are two current policies finalized regarding the requirements of healthcare providers and facilities requiring COVID-19 vaccination status for employees. This should not come as a surprise as vaccinations for healthcare professionals have been a priority for the Centers for Medicare & Medicaid Services (CMS) and the current administration.
Let’s first outline the CMS rule. On November 4-5, 2021, CMS published a press release and the Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule.
The CMS rule applies to Medicare and Medicaid-certified providers and suppliers regulated under the Medicare health and safety standards (or Conditions of Participation (COP’s). Impacted facilities and organizations include:
- Long term care facilities
- Hospices and Home Health agencies
- Programs for All-Inclusive Care for the Elderly (PACE) programs
- Rehabilitation Agencies
- Ambulatory Surgical Centers
- Psychiatric Residential Treatment Facilities
- Intermediate Care Facilities for individuals with intellectual disabilities
- Comprehensive Outpatient Rehabilitation Facilities
- Critical Access Hospitals
- Providers of outpatient physical therapy and speech-language pathology services
- Community Mental Health Centers
- Home Infusion Therapy Suppliers
- Rural health clinical (RHC’s) and Federally Qualified Health Centers (FQHC’s)
- End-Stage Renal Disease (ESRD) facilities
What staff does the CMS rule apply to: (See below from the CMS FAQ)
“This vaccination requirement applies to eligible staff working at a facility that participates in the Medicare and Medicaid programs, regardless of clinical responsibility or patient contact. The requirement includes all current staff as well as any new staff who provide any care, treatment, or other services for the facility and/or its patients. This includes facility employees, licensed practitioners, students, trainees, and volunteers. Additionally, this also includes individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements.” The only exception to this rule is full-time teleworkers who provide services 100% remotely.
- By December 5, 2021, all staff must have received, at a minimum, the first dose of the primary series or a single dose vaccine or requested and/or been granted a lawful exemption prior to staff providing any care, treatment, or other services for the facility and/or its patients. CMS requires providers and suppliers to establish and implement a process that staff may request an exemption from COVID-19 vaccination requirements based on applicable Federal law. Certain allergies recognized medical conditions or religious beliefs, observances, or practices, may provide grounds for exemption.
- By January 4, 2022, all applicable staff must be fully vaccinated, except for those who have been granted exemptions or those staff for whom COVID-19 vaccination must be temporarily delayed, as recommended by CDC, due to clinical precautions and considerations
2nd Policy-OSHA Regulation:
The Occupational Health and Safety Administration (OSHA) released an Emergency Temporary Standard (ETS) published on November 5, 2021.
Who it applies to:
The OSHA regulation applies to all employers with 100 or more employees.
- Either workers must be fully vaccinated against COVID-19 by January 4, 2022 or test negative for COVID-19 at least once a week.
- Employers must provide paid time off for employees to get vaccinated as well as sick leave to recover from side effects. However, employers are not required to pay for testing.
- Unvaccinated workers are required to wear masks.
The OSHA regulation became effective on November 5, 2021. However, the U.S Court of Appeals granted a motion to stay until further court order. Per OSHA’s website, the court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.”
Healthcare providers and practices should prepare now and strategize their response to these standards.
- CMS Press Release: Biden-Harris Administration Issues Emergency Regulation Requiring COVID-19 Vaccination for Health Care Workers
- CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule FAQ’s
- CMS’s Interim Final Rule: COVID-19 Healthcare Staff Vaccination (with comment period)
- OSHA COVID-19 Vaccination ETS