Covered Health Care Facilities Must Prepare for COVID-19 Vaccination Deadlines – SHRM

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 firstCOVID-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 directivebut 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:

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 membersat worksites, administrative offices or in-person meetingsare 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 aninterim ruleon the health care directive in November and updated guidance in December.Unlike the Occupational Safety and Health Administration's emergency temporary standardwhich the Supreme Court blocked on Jan. 13the 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:

"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:

Visit SHRM's resource hub page on the coronavirus and COVID-19.

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Covered Health Care Facilities Must Prepare for COVID-19 Vaccination Deadlines - SHRM