CMS requires COVID vaccines for healthcare staff by Jan. 4

Maya Goldman / November 04, 2021

The Centers for Medicare & Medicaid Services will require COVID-19 vaccines for all employees at Medicare and Medicaid-participating healthcare facilities by Jan. 4, and the Occupational Safety and Health Administration will require all employees at businesses with 100 or more workers to be vaccinated by the same date or get tested for the virus weekly, the agencies announced Thursday morning.

President Joe Biden in September directed the two agencies to put out policies for staff vaccination requirements as part of the administration's national vaccine strategy. Biden also required federal contractors to get vaccinated against COVID-19 in an executive order.

The CMS will require healthcare facilities that participate in Medicare or Medicaid—including hospitals, long-term care facilities, ambulatory surgery centers, dialysis facilities, home health agencies and more—to make sure all clinical and non-clinical employees are vaccinated by the Jan. 4 deadline. The interim final rule stipulates that fully vaccinated means two doses of the Pfizer or Moderna vaccine or one dose of Johnson & Johnson, meaning booster shots are not mandated. There will be a 60 day comment period on the interim final rule.

The administration estimates the CMS mandate will apply to more than 17 million healthcare workers at roughly 76,000 facilities.

OSHA's rule, created as an emergency temporary standard, requires businesses with 100 or more staff to have all staff fully vaccinated by Jan. 4. Employees who are still unvaccinated at that point will need to show a negative COVID-19 test weekly and wear a face mask in the workplace. The rule doesn't require employers to provide or pay for tests, but a fact sheet notes that other laws or collective bargaining agreements might leave employers on the hook for these costs on a case-by-case basis. Employers must provide paid time off for staff to get vaccinated under the rule.

Healthcare employees will not have the option of regular COVID-19 testing instead of getting vaccinated as a way to protect patient safety, a senior administration official said on a Wednesday night call. Medical and religious exemptions are allowed for healthcare workers under the rule, the official said.

If a healthcare facility is found to be out of compliance with the rule after the January deadline passes, CMS will impose a range of consequences ranging from civil monetary penalties to denying payment to removing a facility from the Medicare and Medicaid programs. Removal from the programs would be a last resort and will only be used after providing facilities with opportunities to come into compliance, the administration official said.

Healthcare organizations applauded the intent of the requirement ahead of its release this fall, and nursing home associations said expanding the requirement to other health sectors could help avoid exacerbating workforce crises, though a Sept. 27 letter from the American Hospital Association raises concerns about possible negative impacts of a requirement on the labor force. Administration officials maintained on Wednesday that widespread resignations haven't occurred in the healthcare workforce.

The CMS rule will supersede the OSHA rule for any businesses that might meet the qualifications for both policies, a fact sheet on the new rules says. The rule also pushes back the Dec. 8 deadline for federal contractors to get vaccinated so it lines up with the Jan. 4 deadline for the CMS and OSHA policies.

OSHA's emergency temporary standard is well-precedented and within the agency's legal authority, another senior administration official said on the call. Additionally, the fact sheet says both rules trump any state or local laws that could interfere with the mandates. Several states including Texas have limited employers' authority to require COVID-19 vaccines in recent months.

Despite the administration's insistence that its mandates are within bounds, experts have said legal challenges to the CMS and OSHA rules are almost certain.