An appeals court lifted the injunction preventing the Centers for Medicare and Medicaid Services ("CMS") from enforcing its COVID-19 vaccine mandate for healthcare workers, 86 Fed. Reg. 61,555 (Nov. 5, 2021) in 25 states. Yesterday, CMS announced that it was restarting enforcement of the CMS rule in the 25 states where the injunction was lifted. To give employers in these states additional time to comply, CMS announced that the deadline for "Phase 1" implementation is January 27, 2022, and the deadline for "Phase 2" implementation is February 28, 2022.
States Where CMS Is Enjoined from Enforcing Its Vaccine Mandate At present, CMS is barred from enforcing its vaccine mandate in 25 states, including: 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, Texas, Utah, West Virginia, and Wyoming. In its announcement, CMS acknowledges that it is barred from enforcing its mandate and notes that covered healthcare providers "in those states are not required to comply with the Interim Final Rule, and surveyors will not investigate compliance with the rule in facilities located in those states, pending future developments in the litigation." As previously reported CMS has appealed the injunction and the Supreme Court will hear arguments regarding the CMS mandate (and the OSHA ETS Mandate) on January 7. It is too early to tell, though, how the court will rule.
States Where Enforcement is Forthcoming The 25 states where CMS is not enjoined from enforcing its vaccine mandate include: 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 and Wisconsin.
In these states, CMS announced that it would begin enforcing its mandate in two "Phases":
By January 27, 2022, covered healthcare employers must comply with "Phase 1," which requires all staff to have either: (a) received the first dose of the COVID-19 vaccine or (b) requested a religious or medical accommodation prior to providing any care, treatment or other services for the facility or its patients.
By February 28, 2022, covered healthcare employers must comply with "Phase 2," which requires all staff to have either: (a) completed the primary COVID-19 vaccine series (i.e., single dose J&J or both doses of Pfizer or Moderna) or (b) been granted a religious or medical exemption prior to providing any care, treatment or other services for the facility or its patients.
What About the Supreme Court? As noted above, on January 7, the Supreme Court will hear arguments on whether the CMS vaccine mandate is valid. If the Court upholds the CMS mandate, then healthcare employers will likely be held to the January 27th and February 28th deadlines. Providers in states like North Dakota, South Dakota, and Iowa may have additional time to comply, but they will not be able to avoid enforcement of the CMS mandate. At the same time, though, if the Court strikes down the CMS mandate, then providers throughout the country will not be subject to the CMS mandate. Nothing, of course, prevents a healthcare employer from choosing to implement a COVID-19 vaccine mandate on its own.
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