Nurse gives senior adult healthcare worker the Covid-19 vaccine

CMS COVID-19 Vaccination Requirement for Health Care Facility Staff

By Thomas McKinney

COVID-19 vaccination requirements in workplaces continued to ramp up in the past few months. Back on November 2, 2021, the Centers for Medicaid & Medicaid Services (CMS) issued an interim final rule requiring the majority of Medicare and Medicaid certified providers and suppliers to have staff members vaccinated within 60 days. This was a big announcement with major implications for health care facility employers across the U.S. Let’s take a look at more details of the rule.

CMS COVID-19 Vaccination Requirement for Health Care Facility Staff

The CMS COVID-19 vaccination requirement reaches out to impact staff members who do and do not have direct patient contact. While there are limited exceptions for staff who exclusively provide support services taking place outside of the facility setting, the rule is quite far-reaching. The list of provider categories that participate in the Medicare and Medicaid programs and must comply with the COVID-19 vaccination requirement rule is extensive and includes:

  • Ambulatory surgery centers
  • Clinics and other agencies providing outpatient physical therapy and speech-language pathology services
  • Community mental health centers
  • Comprehensive outpatient rehabilitation facilities
  • Home infusion therapy suppliers
  • Home health agencies
  • Hospices
  • Hospitals
  • Intermediate care facilities
  • Programs for all-inclusive care for the elderly (PACE programs)
  • Residential psychiatric treatment facilities
  • Rural health clinics

Facilities and providers subject to the rule must develop a plan for vaccinating all eligible staff against COVID-19. This plan must ensure that all facility staff, regardless of the staff member’s clinical responsibility or patient contact, are fully vaccinated against COVID-19.  Staff members subject to the rule include:

  • Employees
  • Licensed practitioners
  • Students
  • Trainees
  • Volunteers

The new CMS rule also requires facilities to develop a plan or process in order to provide exemptions and accommodations for staff members who are eligible to be exempt from the COVID-19 vaccination requirements. Additionally, facilities are required to develop a process to effectively track and document staff vaccinations as well as staff exemptions to the vaccination requirement.

The new CMS rule does not apply to those providers that do not participate in the Medicare or Medicaid program. There is also no direct application to physician offices as well as group homes or home and community-based service providers. It is important to note, however, that these providers may be subject to the CMS vaccination rule should they have certain service agreements in place with regulated providers. Additionally, it should be noted that even facilities required to develop and implement COVID-19 vaccination plans are permitted to exclude certain categories of staff members from the plan. For instance, staff who only provide telehealth or telemedicine services outside of the hospital setting and who do not have any direct contact with patients or other staff can be excluded from the vaccine requirement. The main test to determine whether a person can be excluded from the CMS COVID-19 vaccination rule involves the consideration of the following elements:

New Jersey Employment Law Attorneys

CMS has expressed that its rule is intended to preempt any state or local laws that may prohibit a health care facility’s compliance with the COVID-19 vaccine mandate. Employers, these are developments in the law that you need to be aware of, and Castronovo & McKinney can help you with this. Contact us today.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.