Article

CMS and OSHA issue vaccine mandate rules for healthcare providers

Nov. 8, 2021 · Authored by Mark J. Ross, Sophie Campbell, Mary Ellen Kasey

The Centers for Medicare & Medicaid Services (CMS) and the Occupational Safety and Health Administration (OSHA) issued COVID-19 vaccine mandate rules on Thursday, Nov. 4, 2021. These rules were included in the CMS Interim Final Rule and the OSHA Emergency Temporary Standard (ETS).

CMS is requiring that healthcare workers at facilities participating in Medicare and Medicaid be fully vaccinated, and OSHA is requiring employers with more than 100 employees to ensure that each of their workers is fully vaccinated or that they test negative for COVID-19 at least once a week. These vaccine requirements include volunteers and may also affect visitors, depending on the type of facility and organization.

The deadlines for the requirement for employees of federal contractors to be fully vaccinated as well as the OSHA and CMS rules have been aligned and set for Jan. 4, 2022. Together, the OSHA and CMS rules, along with other Biden administration policies, means that over two-thirds of all U.S. workers are now covered by vaccination policies.

OSHA’s ETS

OSHA’s ETS requires employers to develop, implement and enforce a mandatory COVID-19 vaccination policy under which employees could choose to either be vaccinated or undergo weekly COVID-19 testing and wear a face covering at work. The mandate does not require the employer to pay for the weekly testing if that is the choice of the employee, unless this has been included in collective bargaining agreements.

OSHA’s ETS also requires employers to provide paid time off to workers to get vaccinated and paid leave to recover from any side effects of a vaccination that keep employees from being able to work. OSHA is providing robust compliance assistance to businesses implementing the standard and will enforce its rule through planned inspections with penalties for non-compliance.

CMS’ emergency regulation

The emergency regulation issued by CMS requires staff vaccinations for COVID-19 across Medicare- and Medicaid-certified healthcare providers, including, but not limited to, post-acute facilities, nursing homes, hospitals, dialysis facilities, ambulatory surgical settings and home health agencies. The timeframe provided in the CMS vaccination mandate states that within 30 days (i.e., Dec. 5, 2021), providers must: