Coronavirus Legal News

Mandatory Vaccine Policies Soon To Be Required

September 14, 2021

List includes Medicare And Medicaid-Participating Healthcare Facilities, Private Employers With 100 or More Workers and Federal Employees and Contractors

By Amie K. Wilcox and Mark K. Cameron

On September 9, President Biden announced sweeping new policies that, if implemented, will require mandatory vaccination policies for federal employees and contractors and qualifying employers and healthcare facilities. The mandates will cover approximately 100 million Americans, which make up two-thirds of the workforce. We expect further guidance for employers and healthcare facilities to be issued in the coming weeks. Here’s what we know now: 

Healthcare Facilities

The Centers for Medicare and Medicaid Services (CMS) will issue emergency regulations to require COVID-19 vaccinations for healthcare workers at Medicare and Medicaid-participating hospitals and other medical facilities. These requirements will apply to hospitals, ambulatory surgery centers, home health agencies, long-term care facilities, and other medical facilities that participate in the Medicare and Medicaid programs. At this time, it is unclear whether physician clinics will be covered. The new rule is expected to apply to clinical staff, volunteers, individuals providing services under arrangements and staff who are not involved in direct patient, resident, or client care. CMS had previously announced on August 18 that it would issue a rule requiring long-term care facilities to ensure staff are vaccinated against COVID-19 as a condition for receiving federal funds.

A full list of facilities expected to be directly impacted by the new requirement is available here. The CMS Final Rule is expected to be issued in October and will be followed by a Comment Period.

Employers With 100 or More Workers

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is expected to issue an Emergency Temporary Standard (ETS) to require all private employers with 100 or more employees to ensure their staff are either fully vaccinated or undergo weekly COVID-19 testing. The new rule will require employers to provide paid leave for the time it takes to get vaccinated and any post-vaccination side effects that prevent an employee from returning to work. In a briefing by the OSHA, officials indicated that the rule will not apply to employees who work remotely full time. We will know more when the ETS is issued, such as how vaccination status should be verified and whether any guidance will be issued to assist employers process any applicable exemptions. Officials expect the new ETS to be issued in the coming weeks.

OSHA previously implemented an ETS in June requiring healthcare employers to develop a written plan to mitigate virus spread to protect those working in healthcare from contracting COVID-19, make available certain personal protective equipment (PPE), coordinate employee distancing and other requirements. The June ETS also requires healthcare employers to remove from the workplace employees who have been exposed to COVID-19 in the workplace, show symptoms, or test positive for COVID-19 and provide medical removal benefits to those employees. You can find our previous summary of this ETS and OSHA’s resources for compliance here.

Federal Employees and Contractors

Two Executive Orders issued by President Biden require federal employees, as well as employees of contractors that do business with the federal government, to be vaccinated, with limited medical and religious exemptions. Additional guidance on agency implementation of this order is expected this week.

Bottom Line

The September 9 announcement significantly changes the landscape for employers who are working to keep their employees and customers, or patients, safe. While legal challenges are sure to follow, employers are being encouraged to prepare now to comply with the new rules to ensure employees have time to achieve full vaccination status. As we learn more about the exact requirements in the coming weeks, you should involve qualified legal counsel to ensure compliance with the CMS and OSHA regulations as well as federal anti-discrimination laws. 

Amie K. Wilcox joined the firm after earning her law degree from the University of Arkansas at Little Rock William H. Bowen School of Law. Her practice is focused in the area of healthcare where she works primarily on various corporate and compliance matters. She drafts and reviews policies to ensure compliance with federal healthcare regulations such as HIPAA, Stark I and Stark II, Anti-Kickback and Medicare/Medicaid reimbursement.

Mark K. Cameron is an associate in the Labor and Employment Practice Group at Friday, Eldredge & Clark, LLP. His practice is focused on representing employers in litigation matters involving discrimination and Fair Labor Standards Act claims. He also works with non-profits on employment-related issues.

Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.