Based on recent U.S. Supreme Court rulings, physicians and all health care workers at facilities that are subject to the Medicare and Medicaid Conditions of Participation must be vaccinated unless a medical or religious exemption applies. Physician offices are not subject to this mandate.
On January 13, 2022, the Court allowed the CMS COVID-19 vaccine mandate to move forward with a majority of justices agreeing that CMS has the authority to issue rules, including a vaccine mandate during a pandemic, that ensure that healthcare providers protect the health and safety of Medicare and Medicaid patients. Thus, facilities that participate in Medicare and Medicaid must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19. 86 Fed. Reg. 61555 (2021).
The ruling stays injunctions by two federal District Courts that prevented enforcement of the rule and will remain in effect until the Government’s appeals of those cases are finally decided, possibly by the Supreme Court.
CMS made an initial statement on the Supreme Court Decision and clarified that the 24 states (including Ohio) that were covered by the decision will now need to establish plans and procedures to ensure their staff are vaccinated and to have their employees receive at least the first dose of a COVID-19 vaccine. Other states were already subject to compliance. We believe CMS will be issuing more specific guidance for the 24 states impacted by the decision regarding dates for compliance, etc. in the coming days.
Separately, the Court blocked the OSHA Emergency Temporary Standard (ETS) vaccine mandate from going into effect on the grounds that the agency did not have the authority to issue such a broad mandate. The U.S. Court of Appeals for the 6th Circuit had allowed OSHA to proceed to implement the mandate that applied to employers with at least 100 employees. Again, the case will be returned to the lower court for further proceedings.
The OSHA ETS mandate requires that covered workers receive a COVID–19 vaccine, and it preempts contrary state laws. The only exception is for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday.