Healthcare CMS Vaccine Mandate Under Consideration by U.S. Supreme Court; Healthcare ETS Pay Requirement Has Expired

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• As we have reported on previously, the Centers for Medicare & Medicaid Services (CMS) has released a rule (“CMS Rule”) requiring Medicare – and Medicaid – certified healthcare providers and suppliers to have all employees fully vaccinated.
• As a result of a December 15, 2021, federal appellate court ruling, the CMS Rule is blocked in the following states: 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.
• On January 7, 2022, the U.S. Supreme Court heard oral argument on the CMS Rule. Based on this oral argument, it appears more than likely the Court will eventually uphold the CMS Rule; however, the timing of the Court’s decision is unknown. We recommend covered employers comply fully with the CMS Rule.
• CMS has announced that it will begin enforcing the mandate on January 27 (only in states not blocked by court ruling). All employees, contractors, and volunteers affiliated with covered entities must receive the first dose of a COVID-19 vaccine (or the single dose vaccine) prior to January 27. In addition, all affected persons must receive a second dose of their COVID-19 vaccine by February 28.
• In June 2021, the Occupational Safety and Health Administration (OSHA) issued a Healthcare Emergency Temporary Standard (Healthcare ETS) that, among other things, required healthcare employers to pay employees removed from the workforce due to COVID-related reasons. That requirement has now expired; however, the COVID log and reporting provisions of the Healthcare ETS remain in effect.

SESCO Management Consultants will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s COVID-19 Resource Center as additional information becomes available.

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