CMS COVID-19 Vaccination Requirements: The Last Man(date) Standing


CMS COVID-19 Vaccination Requirements: The Last Man(date) Standing

Molly Barker Gilligan

What’s Changed

For Medicare and Medicaid-certified health care facilities, today, Jan. 27, 2022, marks the Phase I implementation deadline for the federal Center for Medicare and Medicaid Service (“CMS”) rule requiring COVID-19 vaccinations or exemptions for all staff in ME and 25 other states. The Phase I deadline has been delayed until Feb. 14, 2022, in New Hampshire and the 23 other states that challenged the mandate in Federal court. [1]

Originally scheduled for implementation on Dec. 6, 2021, Phase I of the CMS rule requires facilities to:

  • Have policies and procedures developed and implemented to ensure staff are vaccinated for COVID-19, or have a legitimate exemption, and to track and securely maintain employees’ vaccination status; and
  • Ensure that applicable staff have received their initial dose of a COVID-19 vaccine or have requested and/or been granted an exemption prior to providing care, treatment or other services for the facility.

What It Means

The CMS Rule only applies to employees of healthcare facilities regulated by Medicare and Medicaid, including hospitals, nursing homes, and rehabilitation facilities, as well as anyone who provides treatment or services to the facility. Many health care employers such as hospitals and nursing homes in ME, and other states with vaccine mandates, are well positioned for compliance with the CMS rule.  However, other facilities that were not required to meet state vaccination rules, such as Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs), must now comply with the CMS Rule.

Reaching the implementation deadline is a milestone that has eluded other federal vaccine mandates impacting private employers. On Tuesday, Jan. 25, 2022, OSHA announced the withdrawal of its November 2021 Emergency Temporary Standard (ETS) requiring vaccination or testing for large employers following the Jan. 13, 2022, U.S. Supreme Court decision blocking enforcement of the mandate.

Another OSHA ETS, which requires vaccination of federal contractors, is currently stayed by multiple federal district courts. Both the Eleventh Circuit and Sixth Circuit courts of appeals have declined to lift those stays. Although resolution of these cases may take months, in the meantime, the government cannot enforce this mandate.

The CMS rule is the only federal mandate impacting private employers that remains in effect, and this came only after a lower court’s injunction was lifted by the Supreme Court on Jan. 13, 2022.

Next Steps for All Employers

Providers and Suppliers that are subject to the CMS Rule should consult with legal counsel to ensure that they are fully compliant with all requirements by the applicable deadline.

Even in the absence of a federal mandate, such as the CMS Rule, all employers are free to put into place policies and procedures to ensure the health and safety of their employees and customers, including requiring vaccination. However, employers should consult with counsel to ensure compliance with state and local regulations, as well as federal discrimination laws.

Visit our Labor & Employment page to learn more about how we can help.


[1] Texas has an implementation deadline of February 22, 2022.