CMS COVID-19 Vaccine Mandate

(Employment Practices December 2021, Updated January 2022 and Feb 8, 2022)

On January 13, 2022, the U.S. Supreme Court lifted lower court injunctions that blocked enforcement in certain states of the Centers for Medicare and Medicaid Services (CMS) mandate, which requires COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement.

The CMS mandate applies to healthcare services, support or suppliers that are regulated under CMS standards. “Facilities” include, but are not limited to:

Hospitals
Ambulatory surgery centers
Dialysis facilities
Home health agencies
Clinics, rehabilitation agencies, and public agencies as providers of outpatient physical therapy and speech-language pathology services
Psychiatric residential treatment facilities
Long-term care facilities including nursing homes
Programs of all-inclusive care for the elderly
Home infusion therapy suppliers
Rural health clinics
End-stage renal disease facilities

The mandate affects only Medicare and Medicaid-certified providers and suppliers. It does not directly apply to other healthcare entities, such as physician offices, that are not regulated by CMS.

The CMS Mandate applies to all current and future employees at covered Facilities, regardless of whether the employee holds a clinical or non-clinical position - doctors, nurses, and medical staff, students, trainees, volunteers, and those who are not involved in direct patient, resident, or client care, as well as home healthcare workers working in patients’ homes. It also applies to anyone providing treatment or services to the Facility - clinical and non-clinical contractors, such as hospice and dialysis staff, physical therapists, occupational therapists, mental health professionals, and social workers.

NY and NJ employers covered by the CMS mandate had until January 27, 2022 to have 100% of covered staff have their first dose of a two-dose vaccine or a single-dose COVID-19 vaccine (with an exception for staff with pending exemption requests and staff whose vaccinations are temporarily delayed per CDC recommendations). Facilities that did not meet this deadline may be exempted from enforcement action if they have more than 80% covered staff vaccinated by January 27th and a plan to reach 100% vaccination within 60 days.

By February 28, 2022, NY and NJ Facilities must have 100% of covered staff vaccinated (with an exception for staff with an approved exemption request and staff whose vaccinations are temporarily delayed). Again, there is some enforcement discretion. Facilities that do not meet this deadline will be exempted from enforcement action if they have more than a 90% vaccination rate and a plan to reach 100% within 30 days.

After March 28, 2022, all NY and NJ Facilities must be 100% compliant and facilities failing to maintain compliance with the 100% standard may be subject to enforcement action.

Facilities should continue to make accommodations for employees with a disability, medical condition, or sincerely held religious belief, practice or

UPDATE - As of February 4, 2022, sixteen state attorneys general have asked a federal judge to block the federal vaccine mandate for healthcare workers. The sixteen states represented are Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Kentucky, Mississippi, Ohio, Oklahoma, South Carolina, Tennessee, Utah, Virginia and West Virginia. They filed suit in the U.S. District Court for the Western District of Louisiana.

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