CMS reinstates vaccine mandate rule for healthcare workers in 25 states
Employers continue to find themselves in the crosshairs of the vaccine mandates enforcement battle. The most recent salvo involves the December 28, 2021, decision by the Centers for Medicare & Medicaid Services (CMS) to enforce its vaccine mandate for healthcare workers at covered entities in 25 states - while that same mandate remains stayed in 25 other states.
The CMS vaccine mandate
Along with the other federal vaccine rules, CMS issued an emergency rule on November 4 requiring COVID-19 vaccination of eligible staff at health care facilities that participate in the Medicare and Medicaid programs. Like the OSHA Emergency Temporary Standard (ETS) and the Federal Contractor Executive Order, the CMS mandate was promptly challenged. Separate federal courts enjoined the CMS mandate in late November resulting in a nationwide stay and prompting CMS to halt enforcement of the mandate nationwide pending the outcome of legal challenges.
On December 15, U.S. Court of Appeals for the Fifth Circuit upheld the CMS mandate stay in 14 states, but trimmed it as to 10 other states where the mandate was subject to separate litigation. As of December 28, the CMS mandate was stayed in 25 states, but was not stayed in 25 others.
CMS announces it will proceed with vaccine mandate enforcement
Wading into that divide, CMS issued guidance on December 28, 2021, indicating that it will now proceed with enforcement of the mandate in the 25 states where it is not stayed.
CMS will begin enforcement in California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington and Wisconsin along with the District of Columbia and U.S. territories.
In its December 28 guidance, CMS further indicated that covered employers in those states where the CMS mandate is stayed are not required to comply, pending future developments in the litigation.
CMS enforcement guidance and deadlines
CMS’s guidance indicates that in the 25 states where the mandate is not stayed healthcare providers covered by the rule must now comply with phase 1 of the mandate by January 27, 2022. This means that staff at covered healthcare providers must have received the first dose of a COVID-19 vaccine by January 27, 2022, and the second dose of a COVID-19 vaccine by February 28, 2022.
While CMS will begin enforcement on January 27, the agency is cognizant of how the mandate may impact healthcare staffing. CMS has indicated that it will provide a second opportunity for healthcare facilities to come into compliance with the mandate before issuing penalties, such as fines and denial of payment. CMS has provided a graduated plan depending on the level of deficiency (percentage of unvaccinated employees) indicating when it will begin enforcement action. In order to be eligible for more lenient standards, the covered healthcare provider must demonstrate that it is working to meet full compliance.
Next steps for covered healthcare employers
With the new CMS enforcement deadline established, covered employers in the noted 25 states should dust off their initial plans and once again plan for compliance.
- Determine coverage under the CMS mandate
- Develop and implement a written policy stating the employer’s requirements related to the CMS vaccine mandate
- Develop a list of employees who are vaccinated and unvaccinated
- Develop a tracking mechanism to ensure compliance within the above described deadlines
- Inform employees of their responsibilities under the mandate and what will happen to them if they do not comply
- Plan for further staff shortages if employees indicate refusal to vaccinate
- Develop and implement a policy to provide religious and medical exemptions to employees who request the same
- Develop accommodations for exempt employees, such as masking, telework, etc.
The Supreme Court will weigh in the CMS mandate stay
The United States Supreme Court will hear arguments on January 7, 2022, regarding the CMS mandate and the OSHA ETS to decide whether one or both should be stayed or whether enforcement can proceed while the litigation over the rules continues. The Supreme Court’s rulings should, at a minimum, remove some of the uncertainty for employers about the stay status of both the CMS mandate and the ETS.
Further information on the CMS mandate
For more information regarding the CMS mandate:
CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule
Employers should expect continued developments regarding the status of each of the federal vaccine rules. The McDonald Hopkins Labor and Employment Team will continue to provide regular updates and is available to assist with compliance and to respond to questions.
