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Vaccine Mandate for Health-Care Employers: What’s Next?

Jan. 21, 2022, 9:00 AM

After a contentious legal battle, the U.S. Supreme Court on Jan. 13 narrowly voted to lift injunctions against the Centers for Medicare and Medicaid Services’ interim final rule requiring health-care worker vaccinations (CMS rule).

The court’s decision had an immediate and significant impact on the health-care industry, as the CMS rule covers 10.4 million workers in about 76,000 health-care facilities participating in Medicare and Medicaid across the U.S. The rule applies to all current and future employees at covered facilities, regardless of whether the employee holds a clinical or non-clinical position, and reaches anyone who provides treatment or services to the facility under contract or other arrangements.

As the Supreme Court ruling was not a ruling on the merits, we are likely to see additional challenges to the CMS rule. By the time those challenges are litigated, however, it is likely that all employees will be vaccinated due to the timeline of the CMS rule.

Supreme Court Decision

In its decision, the court essentially found that unprecedented problems require unprecedented solutions. The majority first opined that CMS’ “core mission…is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.”

Conducting a thorough analysis through this lens, the court recognized CMS’ long history of establishing detailed conditions with which health-care facilities must comply in order to receive Medicare and Medicaid funds. The court specifically noted that these conditions have included the enforcement of infection prevention and control programs.

The court acknowledged, however, that the CMS rule reaches beyond the scope of previous CMS regulations to the extent that it requires vaccination for covered staff. Nonetheless, it found this provision of the CMS rule was justified for two reasons.

First, the scale and scope of Covid-19 presents an issue of first impression for CMS. Second, the court recognized that many states have, in fact, long adopted and enforced influenza vaccine mandates for health-care facilities.

The court credited CMS’ argument that these pre-existing state-level requirements were part of the reason that CMS had not previously enacted a vaccine mandate. Based on the Covid-19 situation, the court found that the vaccine mandate contained within the CMS rule was not only legal, but “a straightforward and predicable example of the ‘health and safety’ regulations that Congress has authorized [CMS] to impose.”

Ultimately, the court concluded that CMS acted within the authority delegated to it when it published the CMS rule and rejected the opposition’s arguments that the rule was arbitrary and capricious. “After all,” the court found, “ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: ‘first, do no harm.’”

What’s Next for Employers Covered By the CMS Rule?

The Biden administration’s vaccine mandate for health-care workers is now enforceable across the U.S. after a federal court on Jan. 19 dismissed a lawsuit filed by Texas, the only state that didn’t have to comply following the Supreme Court decision.

Although the Supreme Court ruling is not a ruling on the final merits, the decision requires employers covered by the CMS rule to comply with its mandates.

Specifically, under the current deadlines provided by CMS guidance issued to state survey agency directors, all facilities in 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 must, by Jan. 27:

  • Require that 100% of covered staff receive their first dose of the Covid-19 vaccine, except those with a pending exemption request and those whose vaccination was temporarily delayed per CDC recommendations. The CMS has announced it will exercise some discretion in enforcing this deadline. Namely, if a facility can show it has more than 80% staff vaccination by Jan. 27 and a plan to achieve 100% vaccination within 60 days, it will be exempted from enforcement actions; and
  • Enact policies and procedures to comply with the CMS rule.

Then, by Feb. 28, covered facilities must ensure that 100% of covered staff are fully vaccinated, except those with a granted exemption request and those having a temporary delay in receiving the vaccination.

Again, though, there is some enforcement discretion. A facility with a more than 90% vaccination rate and a plan to achieve a 100% staff vaccination rate within 30 days of Feb. 28 will be exempted from enforcement actions.

For facilities in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming, the deadlines are extended to Feb. 13 to have 90% of their staff vaccinated and enact a policy.

They have until March 15 to have all staff vaccinated.

The CMS rule preempts any state laws that conflict with its rule.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Yvette V. Gatling is a shareholder at Littler Mendelson P.C. in Tysons Corner, Va. She is the co-chair of the firm’s health-care industry group and has extensive experience defending employers in federal and state court and in matters before the Equal Employment Opportunity Commission and the Department of Labor.

Laura Weipert is an associate based in the Tysons Corner office of Littler Mendelson P.C. She defends international, national, and regional employers in discrimination and harassment litigation, whistleblower claims, and OSHA compliance, and also advises employers on workplace policies and practices for compliance with federal, state, and local employment laws.

Laura Spector is an associate attorney at Littler Mendelson P.C. in Washington, D.C.

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