President Biden is putting nursing homes on notice that all of their employees will need to be vaccinated against COVID-19, if the homes intend to continue participating in Medicare or Medicaid. The administration has directed the Department of Health and Human Services to develop an emergency regulation mandating COVID-19 vaccinations for all staff members as a condition for receiving funds from Medicare and Medicaid. The Centers for Medicare & Medicaid Services ("CMS") will be charged with developing the regulation, which could go into effect as early as September 2021. The CMS states its first priority is protecting the health and safety of nursing home residents and staff against the Delta variant by ensuring that all nursing home staff are vaccinated, and says it will work closely with nursing homes, employees and their unions to ramp up staff vaccinations before the regulation goes into effect.

The proposed regulation comes at a time when more employers, and not just in the health care sector, are requiring all employees to be vaccinated. Details on the proposed regulation are obviously minimal at this time, but we at Spilman will continue to monitor the process to give our clients as much warning as possible. Very likely, the regulation will offer exemptions for the same reasons as exemptions are available under Title VII – namely because of medical or religious need. These exemptions can be difficult to manage and require a well-considered and consistent approach.