On January 13, 2022, the U.S. Supreme Court issued an Order reinstating the Centers for Medicare and Medicaid Services’ (CMS) Interim Final Rule (IFR) requiring healthcare employers to mandate COVID-19 vaccinations for staff.

Late Friday, January 14, 2022, CMS issued a Quality, Safety & Oversight (QSO) Memo with further guidance on how CMS plans to exercise its enforcement discretion. The QSO provides state surveyors with general guidance for how to enforce the IFR as well as provider-facility specific guidance.

Most notably, the QSO Memo clarifies the new compliance deadlines for facilities in states where implementation of the mandate had been halted, including Nebraska and Iowa.

On January 13, 2022, the U.S. Supreme Court issued two Orders regarding the Centers for Medicare and Medicaid Services’ (CMS) vaccine mandate and the Occupational Safety and Health Administration’s (OSHA) vaccine-or-testing emergency temporary standard (ETS). The Court reinstated the CMS vaccine mandate in those states where it had been preliminarily enjoined, and it suspended OSHA’s vaccine-or-testing ETS pending further review.

The Occupational Safety and Health Administration's (OSHA) vaccine-or-testing emergency temporary standard (ETS) is again in effect. Late Friday night, December 17, the Sixth Circuit Court of Appeals lifted the Fifth Circuit’s prior stay on the ETS requiring businesses with at least 100 employees to ensure workers are either vaccinated or tested weekly and wear masks.

On November 29, 2021, the U.S. District Court for the Eastern District of Missouri issued an Order granting a preliminary injunction to halt the implementation and enforcement of the Centers for Medicare and Medicaid Services’ (CMS) Interim Final Rule (the Rule) requiring healthcare employers to mandate COVID-19 vaccinations for staff.

This Order prevents CMS and the federal government from implementing and enforcing the Rule against any and all Medicare- and Medicaid-certified providers and suppliers within 10 states, including the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming, pending a trial on the merits of the case. The Federal Government has appealed the preliminary injunction to the U.S. Court of Appeals for the Eighth Circuit. However, the preliminary injunction will remain in effect, and government will be unable to enforce the rule in the previously listed 10 states, at minimum until the Court of Appeals for the Eighth Circuit rules on the Order granting the preliminary injunction.

On November 29, 2021, the U.S. District Court for the Eastern District of Missouri issued an Order granting a preliminary injunction to halt the implementation and enforcement of the Centers for Medicare and Medicaid Services’ (CMS) Interim Final Rule (the Rule) requiring healthcare employers to mandate COVID-19 vaccinations for staff.

This Order prevents CMS and the federal government from implementing and enforcing the Rule against any and all Medicare- and Medicaid-certified providers and suppliers within the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming, pending a trial on the merits of the case. Thus, until there is a further court ruling, CMS will be unable to enforce the Rule’s requirement that healthcare workers receive at least their first dose of COVID-19 vaccine prior to December 6, 2021.

The Centers for Medicare and Medicaid Services (CMS) issued a regulation in early November requiring COVID-19 vaccinations for staff working at healthcare providers who participate in the Medicare and/or Medicaid programs. CMS has issued FAQs to assist healthcare providers in complying with the vaccine mandate, which it has been updating periodically as new issues arise (the most recent update being November 18th).

On November 4, 2021, the Centers for Medicare and Medicaid Services (CMS) issued an Interim Final Rule (the Rule) requiring healthcare employers to mandate COVID-19 vaccinations for staff. The Rule was issued at the same time as the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) for employers with 100 or more employees. Unlike the OSHA ETS, the CMS Rule does not allow for testing instead of vaccination. Under the CMS Rule, healthcare workers will need to be fully vaccinated by January 4, 2022.

The Occupational Safety and Health Administration (OSHA) has published an Emergency Temporary Standard regarding COVID-19 vaccination and testing requirements. This ETS applies to employers with at least 100 employees. In counting employees, employers must include all U.S. employees (including full and part-time) employed while the ETS is in effect, regardless of the employee’s vaccination status or work location. While employees who work remotely from home, work exclusively outdoors, or report to a workplace without coworkers or customers present must be counted for purposes of determining whether the employer is covered by the ETS, the employer generally does not need to require vaccination or testing for these individuals.

Not surprisingly, several states quickly initiated legal challenges to the ETS. On November 6, 2021, the Fifth Circuit Court of Appeals issued an order staying OSHA’s enforcement of the ETS pending further judicial review. The U.S. Department of Labor and OSHA must respond to the order by 5 p.m. on November 8, 2021.

On September 9, 2021, the White House announced Path Out of the Pandemic: President Biden’s COVID-19 Action Plan to combat the ongoing COVID-19 pandemic, in part by imposing new obligations on employers. Most notably, employers with 100 or more employees must ensure their workforces are fully vaccinated or require unvaccinated workers to produce a negative COVID-19 test on a weekly basis.

On June 10, 2021, OSHA issued an Emergency Temporary Standard. This ETS applies to workers in healthcare settings where people with COVID-19 are reasonable expected to be present, and addresses the hazards of employee exposure to the virus that causes COVID-19. Additionally, OSHA provided updated guidance for employers and workers not subject to the COVID-19 Healthcare ETS.