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Covid Vaccination Mandated for 17 Million Health-Care Workers (1)

Nov. 4, 2021, 12:47 PMUpdated: Nov. 4, 2021, 3:32 PM

Millions of U.S. health-care workers at facilities paid by Medicare and Medicaid will be required to get a Covid-19 vaccination after an interim final rule was released Thursday—a significant prong of the Biden administration’s sweeping plan to crack down on unvaccinated workers and curb the spread of the deadly coronavirus.

The rule (RIN 0938-AU75) will extend to more than 17 million health-care workers who have fought the coronavirus pandemic from the front lines of roughly 76,000 facilities. Workers will have to be fully vaccinated by Jan. 4, 2022 unless they receive a medical or religious exemption. The rule takes effect immediately.

Workers at a broad range of facilities—including “hospitals, ambulatory surgery centers, dialysis facilities, home health agencies, and long-term care facilities"—must get the jab regardless of whether they have a patient-facing role, a White House press release said.

Health-care workers were the first group offered vaccines when they became available, but vaccine hesitancy has been a significant roadblock in keeping staff and patients safe. Over 1,900 health-care workers have died since the beginning of the public health emergency, and more than half a million have gotten Covid-19, the Centers for Medicare & Medicaid Services said.

The CMS rule seeks to standardize a patchwork of mandates from states and individual facilities that may have led unvaccinated health-care workers to jump ZIP codes, employers, or industries. The existing mandates haven’t had full buy-in from staff, even in an industry at higher risk of contracting the coronavirus.

Nursing home employees were the target of a previous Biden administration effort to increase vaccination rates in the health-care workforce. These workers have been notably hesitant to get the shot and are typically low paid with strong minority, female, and immigrant representation.

About 70% of nursing home workers were vaccinated as of Oct. 17, up from about 60% in August. About 1.3 million workers were affected by the requirement, who served in facilities that accounted for roughly 187,000 deaths and almost 1.5 million infections.

“Ensuring patient safety and protection from COVID-19 has been the focus of our efforts in combatting the pandemic and the constantly evolving challenges we’re seeing,” CMS Administrator Chiquita Brooks-LaSure said in a statement. “Today’s action addresses the risk of unvaccinated health care staff to patient safety and provides stability and uniformity across the nation’s health care system to strengthen the health of people and the providers who care for them.”

Scope, Enforcement

Employees, students, people in training, and volunteers will all need to get the vaccine to “help provide patients assurance about the vaccination status of those delivering care, create a level playing field across health care facilities, and help to address challenges facilities have faced with staff sickness and quarantines impacting delivery of care,” according to the White House press release.

The rule also covers people who provide services for a facility under contract, such as housekeepers or food service workers.

The rule doesn’t apply to people who work only remotely, like those who provide only telehealth services.

Coordinating medical and religious exemptions will be “the responsibility of the facility,” a senior administration official said at a briefing for reporters. “No exemption should be provided to any staff for whom it is not legally required (under the ADA or Title VII of the Civil Rights Act of 1964) or who requests an exemption solely to evade vaccination,” the CMS said.

Vaccine mandates for states and facilities have varied in their stances on religious exemptions, so this mandate will standardize the requirement. Even though facilities will have to consider religious exemptions, a 1977 U.S. Supreme Court decision suggests they don’t have to grant them if they pose more than a minimal burden on business operations.

The CMS “will not hesitate to use our full enforcement authority” if a facility does not comply with the rule, the official said. The agency could issue civil monetary penalties, deny payments, or, “certainly as a last resort, terminate them from the Medicare and Medicaid programs.”

The CMS’s goal is to get employees vaccinated, rather than punish them, the official said.

The rule does not offer an option for workers to get tested regularly in lieu of vaccination “given their critical role in ensuring the health and safety of their patients,” the official said.

Part of Broader Initiative

The Biden administration announced the mandate Sept. 9 as part of a broader action plan to combat the pandemic, with a more widespread vaccine mandate for large employers setting off similar rulemaking in the U.S. Labor Department’s Occupational Safety and Health Administration. Two-thirds of all workers are now covered by a vaccination rule, the press release said.

The facilities covered by the CMS rule won’t have to also comply with the OSHA rule, the press release said.

The CMS rule will also “preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing,” the press release said.

More than 40% of hospitals established their own vaccine mandates before the CMS rule came out. The health-care industry had led the charge for vaccine mandates in the workplace, with many hospitals and health systems requiring the jab for their staff before state and federal orders to do so. But the CMS rule announcement caused individual hospital mandates to slow, with facilities hesitant to jump ahead of the guidance writing mandates that would soon be redundant.

Some employers have been reluctant to require the vaccine over fear workers might quit or not comply, worsening nationwide staffing shortages that already limit access to care. Protests against the mandates have popped up across the country, generally from people who believe they are an imposition on their bodily autonomy.

“As more and more businesses, organizations, and states across the country implement vaccine requirements, it’s become clearer every day: Vaccine requirements are effective,” the official said. They have increased the rate of vaccinations by more than 20%, according to the White House.

“The threats that unvaccinated staff pose to patients are not, however, limited to SARSCoV-2 transmission,” the CMS said. Patients may choose to not come in for needed care because they are worried about exposure from unvaccinated staff members. Unvaccinated workers taking sick leave can also lead to staffing shortages, the CMS said.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

No ‘Widespread’ Resignations

“We are aware of concerns about health care workers choosing to leave their jobs rather than be vaccinated,” the CMS said. But hospitals and states that have already required the vaccine “have not seen widespread resignations,” the official said.

There are “endemic staff shortages” that could get worse if unvaccinated people leave the health-care industry, the CMS said. It’s difficult to predict just how many workers will leave the field or jump to an employer not covered by the rule, such as a physician or dental office, or an assisted living facility, the CMS said.

The rule went through an expedited process due to the public health emergency. Those affected by the rule have 60 days to submit comment on it, after which the CMS could post an updated final rule.

Rulemaking typically starts with a proposed rule and a 30- to 60-day pause to solicit comments, followed by a sometimes lengthy review process. The Office of Management and Budget received the interim final rule for review Oct. 8 and cleared it Nov 1.

(Updates with additional reporting throughout.)

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editor responsible for this story: Brent Bierman at bbierman@bloomberglaw.com

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