On December 28, 2021, CMS announced that it would resume enforcement of its COVID-19 vaccine mandate for healthcare providers in areas not covered by injunctions issued by federal courts. As of December 15, 2021, federal courts issued injunctions staying the vaccine mandate as to 25 states. As a result of CMS’s new policy announcement, healthcare workers in the remaining 25 states, the District of Columbia, and the territories must receive their first dose of a two-shot vaccine, or a single-dose vaccine, by January 27, 2022, and must be fully vaccinated or receive an exemption by February 28, 2022. On January 7, 2022, the Supreme Court is set to hear oral argument as to whether the existing injunctions should be kept intact pending further court proceedings, and, in so doing, may provide guidance about the legal authority of CMS to impose any vaccine mandate.
CMS had previously announced, on December 2, 2021, that it would not enforce the Omnibus COVID-19 Health Care Staff Vaccination, 86 Fed. Reg. 61,555, 61,556 (Nov. 5, 2021) (the “COVID-19 vaccine mandate”) “while there are court-ordered injunctions in place prohibiting enforcement” of the mandate. These injunctions enjoin the COVID-19 vaccine mandate in the following 25 states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.
On December 22, the Supreme Court announced it would hear oral arguments on January 7, 2022 about whether to stay the various district court issued injunctions pending further appellate review. In addition, the Supreme Court will consider whether a preliminary injunction is warranted to stay enforcement of the rule issued by OSHA that requires that employers with 100 or more employees ensure each of their workers is fully vaccinated or tests for COVID-19 on a weekly basis.
In the December 28, 2021 update, CMS stated that, as an exercise of enforcement discretion, the COVID-19 vaccine mandate will be implemented and enforced as to the remaining 25 states, the District of Columbia, and the territories, not subject to any district-court injunctions. Per CMS’s announcement, the deadline for Phase 1 implementation in those areas is now January 27, 2022. This means that by January 27, 2022, healthcare workers in the affected jurisdictions must either: (1) receive the first dose of the primary series or a single-dose COVID-19 vaccine; or (2) request and/or be granted a lawful exemption, prior to providing any care, treatment or other services for the facility and/or its patients. The deadline for Phase 2 implementation, which requires all applicable staff be fully vaccinated, except for those who have been granted lawful exemptions, is now February 28, 2022. CMS also confirmed that the public comment period for the interim final rule will close on January 4, 2022, as originally scheduled.
This new enforcement timeline affects healthcare workers in the following jurisdictions: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, Wisconsin, the District of Columbia, and all U.S. territories.
Of course, the Supreme Court upon hearing the pending appeals on January 7 could issue a ruling that could restrict or otherwise affect CMS’s ability to move forward with implementation of the vaccine mandate. Alternatively, it could issue a ruling that could allow CMS to move forward with the mandate nationwide. Therefore, the legal authority of CMS’s mandate still remains in flux despite the agency’s recent policy announcement.
The December 28, 2021 CMS update can be found here. CMS’s November 5, 2021 Interim Final Rule, “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination,” can be found here.
