Vaccine Mandate for Healthcare Workers Reinstated as U.S. Supreme Court Prepares to Hear Oral Arguments on Vaccine Mandates

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The Centers for Medicare and Medicaid Services (CMS) issued an emergency ruling in November 2021, which would require eligible staff at health care facilities participating in Medicare and Medicaid programs to be fully vaccinated against COVID-19. The mandate was quickly challenged in several states, resulting in a nationwide stay on enforcement. Despite pending litigation, on December 28, 2021, CMS announced their decision to once again enforce the COVID-19 vaccine mandate for covered entities in the 25 states (listed below), the District of Columbia, and the territories not currently impacted by the stay.

As a result of CMS’s decision, the mandate now has an updated timeline for covered entities to implement a vaccine policy. Facilities now have until January 27, 2022 to ensure compliance with Phase 1 of the mandate, which includes requirements for the establishment of policies and procedures and at least one dose of the COVID-19 vaccine for eligible staff. Facilities must be in compliance with Phase 2 of the mandate by February 28, 2022. Phase 2 requires eligible staff to be completely vaccinated or have been granted an exemption. CMS has indicated that it will allow facilities a second opportunity to come into compliance prior to issuing penalties for noncompliance; however, facilities that are noncompliant within 90 days after publication of the guidance may be subject to enforcement action, which, in extreme cases, could include termination of participation from the Medicare and Medicaid programs.

While the ultimate fate of the mandate remains to be seen, covered employers should be mindful of any necessary next steps to ensure compliance with CMS’s vaccine mandate. Some ways covered employers can prepare to comply include:

  1. Developing a written policy outlining the requirements under the mandate and informing employees of their responsibilities and implications of noncompliance. Policies should include steps for employees to take if seeking a religious or medical exemption
  2. Preparing a list of employees who are fully vaccinated and unvaccinated/not fully vaccinated and develop a process for tracking compliance
  3. Determining next steps for exempt employees to receive accommodations, i.e., wearing a mask, teleworking, etc.

Note: CMS will enforce the COVID-19 vaccine mandate in the following states: 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.

 The U.S. Supreme Court is scheduled to hear arguments on January 7, 2022 pertaining to the CMS vaccine mandate and the OSHA vaccine-or-test mandate applicable to employers with 100+ employees. The decision reached by the Court may shed light on what’s next for the vaccine mandates nationwide. Oral arguments on the OSHA vaccine-or-test mandate are set to begin at 10am Friday morning, with arguments on the CMS vaccine mandate following immediately after at 11am.

To listen live, both oral arguments will be available here. Alternatively, recordings of the arguments will be available on the U.S. Supreme Court’s website. The Court will likely reach a decision shortly after the arguments have concluded.  

Additional information on the OSHA vaccine-or-test mandate and its employer implications can be found here.

Employer Vaccine Resource Kit

Sometimes its hard to keep up with all the latest recommendations and regulations. In an effort to ease the burden, we have compiled eight important resources that you can access when planning your COVID-19 vaccine practices.

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