On Jan. 13, 2022, the U.S. Supreme Court dissolved the temporary injunctions blocking enforcement of the Centers for Medicare & Medicaid Services (CMS) emergency rule requiring COVID-19 vaccination of certain health care workers. As a result, the emergency rule will now be reinstated and can be enforced as written.
CMS had previously indicated that it would not enforce the emergency rule while the injunctions prohibited enforcement. In light of the Supreme Court’s ruling, it is likely that CMS will begin enforcement of the emergency rule.
COVID-19 Vaccination Requirement
The CMS rule applies to Medicare- and Medicaid-certified provider and supplier types that are regulated under the Medicare health and safety standards, including hospitals, clinics and long-term care facilities.
These facilities must establish a policy ensuring that all eligible staff are vaccinated against COVID-19. Under the rule’s planned timeline, staff members had to receive the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment or other services by Dec. 6, 2021, and the necessary shots to be fully vaccinated—either two doses of Pfizer-BioNTech or Moderna or one dose of Johnson & Johnson—by Jan. 4, 2022.
The regulation provides for exemptions based on recognized medical conditions or religious beliefs. However, there is no weekly testing exception for unvaccinated workers.
Impact on Employers
In light of the Supreme Court’s ruling, it is likely that CMS will resume enforcement of the vaccination emergency rule. As a result, affected health care facilities that have not already implemented a vaccination policy should establish a policy requiring staff to be COVID-19 vaccinated as soon as possible. In addition, affected health care facilities should implement procedures to determine and document workers’ vaccination status.
This Legal Update is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice. ©2022 Zywave, Inc. All rights reserved.
