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Employment Law Notebook

COVID-19 Vaccination Rule Effective January 27 for Employees Working In Medicaid/Medicare-Certified Healthcare Entities; Employees Working in NJ Face Stricter Requirements

Starting January 27, most employees working on site for Healthcare entities that are certified Medicare and Medicaid providers must be vaccinated with at least one dose of COVID-19 vaccine (Phase 1) and get the second dose of a two-dose COVID-19 vaccine by February 28 (Phase 2). The requirements are part of a COVID-19 Health Care Staff Vaccination Rule issued by the Centers for Medicare and Medicaid Services. (“CMS”). The vaccination rule applies to all staff who interact with other staff, patients, residents and clients in-person regardless of clinical responsibility or patient contact. Covered healthcare facilities must impose these requirements on employees unless affected employees have been granted a medical or religious exemption or they need to delay getting the vaccine due to certain medical conditions. 

Employees working at CMS-certified facilities based in New Jersey will also have to get a booster shot by February 28 or within three weeks after eligibility and can be subject to discipline for failing to do so thanks to a new Executive Order recently issued by Governor Phil Murphy.  Employees working in these states get until February 14 to comply with Phase 1 of the CMS rule and March 15 for Phase 2: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming. Employees working in Texas get until February 22 to comply with Phase 1 of the CMS rule and March 21 to comply with Phase 2.

The CMS vaccination rule was recently upheld by the U.S. Supreme Court so it is not going away. It applies to the following providers and suppliers: ambulatory surgery centers, community mental health centers, home health agencies, hospices hospitals, clinics, long-term care facilities, outpatient rehabilitation facilities, critical access hospitals, end-stage renal disease facilities, home infusion therapy suppliers, intermediate care facilities for individuals with intellectual disabilities, rehabilitation agencies, public health agencies that provide outpatient physical therapy and speech-language pathology services, psychiatric residential treatment facilities, programs for all-inclusive care for the elderly, rural health clinics and federally qualified health centers.

Healthcare facilities may find themselves bombarded with a significant number of requests for exemptions to the vaccine mandate.  While covered healthcare entities are permitted to evaluate and grant employee requests for medical and religious exemptions, CMS cautions against granting them unless it is legally required.  If exemptions are granted, such employers must take steps to ensure that unvaccinated staff take steps to minimize the risk of transmitting COVID-19 to others.  The legal process for evaluating and deciding on medical and religious exemption requests is complicated and can easily trip up employers. Getting employment law counsel involved with this process can ensure that the necessary steps are followed and that decisions are factually and legally sound.

While CMS will begin enforcement on January 27, the agency is aware that healthcare employers could face hurdles in maintaining staffing given the vaccine deadlines. CMS promises to follow a staged enforcement plan before imposing fines and withholding funding depending on the percentage of employees vaccinated by required deadlines.  The higher the percentage of vaccinated staff, the more lenient CMS will be.

Healthcare facilities affected by the CMS Rule should be doing the following:

  • Determine if they are covered under the CMS Vaccination Rule and NJ Executive Order (for NJ Facilities).
  • Develop a list of employees who are vaccinated and unvaccinated.
  • Plan for staff shortages if employees refuse to vaccinate.
  • Develop and implement a written policy stating the employer’s requirements related to the CMS vaccine mandate and NJ Executive Order (for NJ Facilities). Inform employees of their responsibilities and what will happen to them if they do not comply. (NJ employers must also have specific discipline outlined). Include a process to address religious and medical exemption requests from employees and a process for evaluating such requests.
  • Develop a process for obtaining vaccination documents from staff and keeping it in a secure confidential location.
  • Develop a tracking system to keep track of vaccination proof received and staff compliance with vaccination deadlines.
  • Identify accommodations to be given to exempt employees, such as testing, masking, telework, etc.

If you are an employee or employer affected by this Rule and have questions, reach out.