UPDATE: The information below was accurate as of 11/4/2021, when it was published, but as legal challenges to these mandates continue, the changing enforcement jurisdictions and deadlines will be updated in the article here.

 

Two more rules came out today from the Biden administration regarding COVID-19 vaccination. The first covers healthcare workers at facilities that are certified by Medicare or Medicaid under specific health and safety regulations (Conditions of Participation (CoPs), Conditions for Coverage (CfCs), or Requirements). Notably, this does NOT include physician offices, as they are not subject to these regulations. The second rule came from the Occupational Safety and Health Administration (OSHA), which released a second COVID-related emergency temporary standard (ETS) applicable to all employers with 100+ employees.

As of today (November 4, 2021), these are the facilities and provider types required to ensure workforce vaccination against COVID-19 under the three federal vaccine mandates:

1. Government contractors must ensure their workforce is fully vaccinated by January 4, 2021 (extended from the original deadline of December 8, 2021 to align with the two additional rules issued today). There are required exceptions and accommodations for religious and medical reasons, but no option for testing in place of vaccination. It is important to note that accepting Medicare or Medicaid as reimbursement for medical care and services DOES NOT make a medical practice or facility a government contractor. Contracts with the VA, DoD, or for providing care to active or retired military are the most common ways a healthcare facility becomes a government contractor or subcontractor.

2. Medicare and Medicaid-certified facilities must ensure their on-site and patient-facing workforce receives at least one COVID-19 vaccine by December 5, 2021, and is fully vaccinated by January 4, 2022. There are again required exceptions and accommodations for religious and medical reasons, but no option for testing in place of vaccination.

  • Facilities subject to this regulation include: Ambulatory Surgery Centers, Community Mental Health Centers, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, End-Stage Renal Disease Facilities, Home Health Agencies, Home Infusion Therapy Suppliers, Hospices, Hospitals, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services, Psychiatric Residential Treatment Facilities (PRTFs) Programs for All-Inclusive Care for the Elderly Organizations (PACE), Rural Health Clinics/Federally Qualified Health Centers, and Long Term Care facilities.
  • Note: Community Mental Health Centers subject to this rule are ONLY those CMHCs certified by Medicare and subject to Medicare’s CMHC Conditions of Participation (read more here). There are only 129 active Medicare-certified CMHCs in the entire United States.
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3. All employers with 100+ employees must ensure their workforce is fully vaccinated OR require weekly testing for unvaccinated employees by January 4, 2021 under a second OSHA ETS. All employers subject to this mandate must also meet certain requirements by December 5, 2021, such as establishing policies, determining vaccination status for all employees, etc.

These three mandates are in addition to the federal employee mandate, which requires all federal employees to be fully vaccinated by November 22, 2021, with limited exceptions.

So who still isn’t required to be vaccinated under federal mandates? Any providers or facilities with fewer than 100 employees, not certified by Medicare or Medicaid, and not holding any government contracts or acting as a subcontractor to a government contractor do not fall under these rules. Most notably, this includes most small and medium-sized physician practices. However, these practices may still be subject to state and local guidelines. Check with your local health department regarding any additional local rules that may apply to you.