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.
In conjunction with the Biden administration’s declaration that the COVID-19 national public health emergency ended effective May 11, 2023, the Centers for Medicare and Medicaid Services (CMS) announced it would “soon end” its mandatory vaccination requirement and that additional guidance would be forthcoming. As anticipated, on June 5, the CMS published a final rule providing guidance to healthcare employees about unwinding provisions of its interim final rule, which mandated COVID-19 testing, education, and vaccinations. The final rule will take effect on August 4, 2023, and address three specific COVID-19 mandates.
First, the final rule withdraws the interim rule’s requirement that all healthcare workers regulated by CMS be fully vaccinated. Although the final rule will not be effective until August 4, CMS has explicitly stated that it will not enforce the vaccination requirement in the interim. As such, CMS has immediately ended its vaccination mandate, which would have otherwise sunset in November 2024. Meanwhile, CMS still intends to encourage ongoing COVID-19 vaccination through its quality reporting and value-based incentive programs.
Second, the final rule permanently adopts policies requiring covered healthcare providers to continue to educate and offer COVID-19 vaccinations to staff and residents, essentially aligning CMS’ approach for COVID-19 with that for other infectious diseases, specifically influenza.
Third, the final rule removes expired COVID-19 testing requirements, which were first implemented on September 2, 2020.
Similarly, many states and territories, such as New York and Puerto Rico, are repealing state-specific COVID-19 measures. Withdrawal of mandatory vaccination rules do not generally prohibit employers from requiring employees be vaccinated, and absent state-specific prohibitions, healthcare employers may continue to require COVID-19 vaccinations. However, moving forward, healthcare providers may no longer rely upon the presumption that CMS’ vaccination rule preempts legislation in other states, such as Utah, which restrict employers from requiring vaccination or making employment decisions based on immunity status. As such, healthcare providers that wish to implement or continue mandatory COVID-19 vaccinations for their staff should undertake a detailed analysis of state-specific prohibitions to ensure that their company-mandated requirement does not violate applicable state law.