Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On August 18, 2021, President Biden announced that nursing home staff must be vaccinated against COVID-19 or the facilities employing them could lose federal Medicare and Medicaid funding. These new requirements are similar to those of many states and localities across the nation that have begun to require vaccination for healthcare workers.1 These new rules on nursing homes will be issued by the U.S. Department of Health & Human Services (HHS), which President Biden directed to develop emergency regulations.
When issued, these new regulations will apply to over 15,000 nursing home facilities nationwide, which employ roughly 1.3 million employees. According to the CDC, only about 62% of nursing home staff had been vaccinated as of August 8, 2021, and in some states, the number of vaccinated staff is far lower, lagging well behind the number of vaccinated residents. The CDC and Centers for Medicare & Medicaid Services (CMS) data report a strong relationship between the increase of COVID-19 cases among nursing home residents and the rate of vaccination among nursing home workers.
This announcement follows other steps the Biden administration has recently taken to encourage vaccination in critical sectors, including mandating federal employees and contractors receive the vaccine, and voicing support for vaccine mandates by private employers, local governments, and education authorities.
HHS has not yet issued the text of its emergency rule codifying this new policy, but current reporting is that the new rule may take effect as soon as early September. HHS previously published a regulation in May 2021, tying similar federal funding for nursing homes to whether they offer the vaccine to staff and educate them about the benefits and risks of taking it.
Implications for Employers in the Nursing Home Sector
Those who operate nursing homes should take stock of this announcement, and may want to revisit company vaccination policies to ensure their Medicare and Medicaid funding is not jeopardized. While these new conditions do not deprive employees of their rights to reasonable accommodations based on disability or sincerely held religious beliefs, they may factor into employers’ analysis of the hardship an employee’s refusal to vaccinate could cause.
Littler will provides updates as further information becomes available, including the forthcoming draft and final regulation.
1 See, e.g., Lisa M. Griffith, Devjani H. Mishra, and Sanjay V. Nair, New York State Requires Healthcare Workers to be Vaccinated Against COVID-19, Littler ASAP (Aug. 18, 2021) (New York); Jeremy Wood, Nicholas McKinney, Tom Holt, and Alka Ramchandani-Raj, California and Washington Issue Vaccine Mandates — Frontrunners in What Appears to Be a Growing Trend, Littler Insight (Aug. 12, 2021) (California and Washington); Anabel Rodríguez, Alberto Tabales and Irene Viera, Puerto Rico Government Issues New Vaccination Requirements for Additional Business Sectors, Littler ASAP (Aug. 10, 2021) (Puerto Rico); David Gartenberg and Danielle Van Katwyk, Denver Mandates That All Public-Sector and Certain Private-Sector Employees Be Vaccinated for COVID-19, Littler ASAP (Aug. 4, 2021) (Denver).