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Update on Vaccine Requirements for Facilities Receiving Medicare and Medicaid Funding

As HR Works previously reported, as part of President Biden’s Path Out of the Pandemic plan, the President announced that nursing home staff must be vaccinated against COVID-19 or the facilities employing them could lose federal Medicare and Medicaid funding. On Friday, November 5, 2021, the Centers for Medicare & Medicaid Services (CMS) issued its’ Interim Final Rule (IFR) establishing the COVID-19 vaccination requirements for staff employed at Medicare and Medicaid certified providers and suppliers. The IFR went into effect immediately.

Covered providers and suppliers must implement mandatory vaccination policies that include a process for employees and other staff to request an exemption from the vaccination requirement due to medical or religious reasons.

The IFR requires covered employees and other staff to have received their first dose of a multi-dose COVID-19 vaccine series by December 5, 2021, and to be fully vaccinated against COVID-19 by January 4, 2022.

Which Facilities and Suppliers are Required to Comply?

In reviewing the release of the IFR, this mandate will be extended to more types of healthcare settings than initially anticipated, resulting in much broader implications across various types of healthcare facilities and suppliers. The decision to expand coverage was based on the continued and growing spread of the virus in healthcare settings.

Facilities and suppliers subject to the IFR include hospitals, dialysis facilities, ambulatory surgical settings, home health agencies, long term care facilities, comprehensive outpatient rehabilitation services, community mental health centers, among others.

The requirements do not apply to physician offices not regulated by CMS, organ procurement organizations or portable x-ray suppliers, but employees working for these organizations may indirectly be subject to the requirements if under contract with other covered healthcare entities that are subject to the IFR. For example, an organ procurement organization who goes onsite to a covered hospital to perform services will likely be indirectly covered.

Are All Employees of a Covered Facility or Supplier Covered by the IFR?

The vaccination requirements generally apply to all employees without regard of clinical responsibility or patient contact. All current and new employees who provide any care, treatment, or other services for the facility or its patients are covered. The IFR also applies to non-employees, such as students, trainees, volunteers, and individuals providing care, treatment, or other services for the facility or its patients under contract or other arrangement.

The vaccination requirement does not apply to employees or others who provide fully remote services, such as remote telehealth or payroll services. However, remote workers, who may sometimes encounter fellow staff or who will enter a covered healthcare facility or site as part of their job duties will be required to comply.

Other Key Highlights of the IFR

  • Recordkeeping Requirements. Covered providers and suppliers must track and document the vaccination status of each staff member, including those for whom there was a temporary delay in vaccination. These records must be kept confidential and separate from the employee’s general personnel file.
  • Workplace Safety Policies and Procedures. Covered providers and suppliers must implement a process for ensuring additional precautions intended to prevent the transmission and spread of COVID-19 for all staff who are not fully vaccinated.
  • Testing Out. There is no test out option.

Are There Any Exceptions to the IFR?

Employees who are unable to be vaccinated due to a medical or sincerely held religious belief may be entitled to a reasonable accommodation. The Equal Employment Opportunity Commission (EEOC) issued guidance that federal law does not prevent an employer from mandating COVID-19 vaccination of its employees, but the EEOC cautioned that employers must still provide reasonable accommodations that do not cause an undue hardship. Under the IFR, all requests for a medical or religious accommodation/deferral must be submitted by December 5, 2021.

What’s Next?

CMS is developing interpretative guidance, including procedures to govern enforcement. Covered providers and suppliers who fail to comply may face civil money penalties, denial of payment for new admissions, or termination of the Medicare/Medicaid provider agreement.

Next Steps for Employers

Those facilities covered by the mandate may want to revisit and/or update their vaccination policies to ensure their Medicare and Medicaid funding is not in jeopardy. Employers without a vaccine policy should work to develop and implement one.

Employers should also review and/or updated their reasonable accommodation procedures and corresponding request forms and ensure the process for requesting an exemption or deferral is clearly communicated to employees and other staff prior to December 5. Human Resources, managers/supervisors or others responsible for addressing accommodation requests should be trained on these requirements, including issues surrounding religious and medical exemptions that are likely to arise.

Employers should also consider any implications and have a plan in place should employees or other staff choose not to comply with the mandate, such as separation of employment, staffing level deficiencies and the need to increase recruiting and hiring efforts to maintain skilled workers and required staffing levels.

Notably, the IFR’s preamble states that the IFR preempts any state or local laws, so employers in states or localities where federal law cannot be reconciled with state or local vaccine related mandates should consult with their legal counsel for additional guidance.

HR Works will continue to monitor this topic and provide updated information as needed.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.