Employers that are covered by the federal government’s COVID-19 vaccination directive for health care workers must take swift action to comply with looming deadlines. The U.S. Supreme Court recently declined to put the rule on hold while its merits are debated in court.
The Centers for Medicare & Medicaid Services (CMS) rule applies to health care workers at Medicare- and Medicaid-certified providers and suppliers. Covered workers must receive their first COVID-19 vaccine dose by Jan. 27 and be fully vaccinated by Feb. 28. Additionally, employers must track employees’ vaccination statuses and develop policies that include medical and religious exemptions and accommodations.
“Covered employers should establish clear, confidential procedures for maintaining vaccination status and processing exemption requests,” suggested Jody Ward-Rannow, an attorney with Ogletree Deakins in Minneapolis. “Covered employers need to be communicating with employees and any other staff who enter their facilities now in order to give staff time to get vaccinated and submit their vaccination status or apply for an exemption.”
High Court Lifts Hold on Rule
The CMS health care worker mandate was challenged by several states in multiple lawsuits. In late November, lower courts in Missouri and Louisiana issued a stay that blocked enforcement of the CMS directive—but only in the states that had joined the lawsuits.
“As a result, the CMS vaccine mandate was in effect in some states but not others,” noted Norma Zeitler, an attorney with Barnes & Thornburg in Chicago. “The Supreme Court lifted the stays of enforcement, paving the way for the CMS to enforce its vaccine mandate nationwide.”
The CMS rule is tied to federal funding and applies only to organizations that voluntarily participate in the Medicaid and Medicare programs. Congress authorized the secretary of health and human services “to impose conditions on the receipt of Medicaid and Medicare funds that the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services,” the Supreme Court noted in its ruling.
Who Is Covered?
The CMS rule applies to the following Medicare- and Medicaid-certified providers and suppliers:
- Ambulatory surgical centers.
- Hospices.
- Psychiatric residential treatment facilities.
- Programs of all-inclusive care for the elderly.
- Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long-term care hospitals, children’s hospitals, transplant centers, cancer hospitals and rehabilitation hospitals/inpatient rehabilitation facilities).
- Long-term care facilities, including skilled nursing facilities and nursing facilities, generally called nursing homes.
- Intermediate care facilities for individuals with intellectual disabilities.
- Home health agencies.
- Comprehensive outpatient rehabilitation facilities.
- Critical access hospitals.
- Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services.
- Community mental health centers.
- Home infusion therapy suppliers.
- Rural health clinics/federally qualified health centers.
- End-stage renal disease facilities.
The vaccination requirement applies to workers at covered facilities even if they don’t have clinical responsibilities or patient contact. This includes facility employees, licensed practitioners, students, trainees and volunteers. Workers who provide care, treatment or other services for the facility or patients are also covered.
“These requirements are not limited to those staff who perform their duties within a formal clinical setting, as many health care staff routinely care for patients and clients outside of such facilities, such as home health, home infusion therapy, hospice, PACE programs, and therapy staff,” according to the CMS.
Staff members who typically work remotely but occasionally have contact with other staff members—at worksites, administrative offices or in-person meetings—are also covered by the rule. The agency noted, however, that staff who perform 100 percent of their duties remotely are not required to get vaccinated.
“Facility staff vaccination rates under 100 percent constitute noncompliance under the rule,” according to CMS guidance. But the agency will be flexible with its enforcement efforts. “Noncompliance does not necessarily lead to termination [from the programs], and facilities will generally be given opportunities to return to compliance.”
Compliance Tips
The CMS issued an interim rule on the health care directive in November and updated guidance in December. Unlike the Occupational Safety and Health Administration’s emergency temporary standard—which the Supreme Court blocked on Jan. 13—the CMS mandate does not allow covered facilities to implement a COVID-19 testing program as an alternative to requiring vaccination, Zeitler noted.
Jackson Lewis highlighted the following key provisions of the interim rule:
- Covered providers and suppliers must implement mandatory vaccination policies that include a process for workers to request an exemption for medical or religious reasons in accordance with applicable federal law.
- There is no “test out” option for unvaccinated workers.
- Only religious or medical exemptions are permitted.
- Covered providers and suppliers must track and securely document the vaccination status of each staff member.
- Covered providers and suppliers must implement a process for ensuring additional precautions are taken to prevent the transmission and spread of COVID-19 for all staff who are not fully vaccinated.
- Facilities that do not comply with the rule risk losing funding.
“CMS is expected to provide additional guidance with regard to the implementation of the interim rule for the states that had been covered by the stays,” Jackson Lewis noted.
According to Fisher Phillips, the following components are critical parts of a successful plan:
- Adopting procedures to safeguard information about employees’ vaccination status.
- Communicating with everyone who works onsite about the applicable vaccination and exemption policies and procedures.
- Developing a nondiscriminatory, streamlined process to handle vaccination accommodation requests.
- Reviewing and confirming the additional COVID-19 precautions that apply to workers who are granted accommodations.
- Preparing to respond to pushback and complaints from workers, as well as possible onsite CMS inspections.