Colorado’s Vaccine Mandate for Healthcare Providers Remains in Effect Despite Stays to CMS Vaccine Mandate

Healthcare providers in Colorado must be cognizant of multiple rules relating to vaccine mandates for their employees. While the Centers for Medicare and Medicaid Services (“CMS”) interim final rule (“CMS vaccine mandate”) has been blocked by the courts nationwide, the Colorado Board of Health’s separately issued vaccine mandate for healthcare settings remains in effect. This rule requires that all employees, direct contractors and support staff (“covered employees”) in licensed healthcare settings in Colorado be fully vaccinated against COVID-19. The state is also moving forward with new regulations concerning its vaccine mandate, which will modify its requirements as applicable to healthcare providers in Colorado.

When did the Colorado vaccine mandate take effect?

On August 30, 2021, the Colorado Board of Health adopted an emergency rule imposing a requirement that all licensed healthcare facilities in Colorado must obtain 100% vaccination against COVID-19 among their employees, direct contractors, and support staff by October 31, 2021. This rule remains in effect.

After the Colorado vaccine mandate was issued, however, the Biden administration announced that CMS would issue a similar vaccine mandate that would cover healthcare providers nationwide. For that reason, the Colorado Board of Health announced its intention to “harmonize” the Colorado vaccine mandate with the forthcoming federal rules, and to “pause” further rulemaking on the Colorado vaccine mandate.

Likely due, at least in part, to the fact that the CMS vaccine mandate has been blocked nationwide, the Colorado Board of Health decided to move forward with its own rulemaking regarding the Colorado vaccine mandate. To that end, on December 7, 2021, the Board of Health published revised rules relating to the Colorado vaccine mandate. The new rules feature several key changes to the original regulations, which are described in more detail below.

Religious and Medical Exemptions to 100% Vaccination Requirement Are Now Treated Identically

The Colorado vaccine mandate requires that 100% of employees, direct contractors, and support staff be fully vaccinated, while permitting exemptions from the 100% requirement based on medical or sincerely held religious beliefs. The previous rule counted employees who had been approved for a medical exemption as counting toward the 100% vaccination rate. In other words, if a covered facility had 50 employees, 45 of whom had been fully vaccinated and 5 of whom had been granted medical exemptions, that facility would have a 100% vaccination rate. Religious exemptions were treated differently, however, and were not counted toward the 100% requirement. If a single employee were granted a religious exemption, the facility would fall below the 100% vaccination requirement and would not be in compliance with the rule.

That rule has now been changed, and individuals granted religious exemptions are counted alongside medical exemptions for purposes of calculating the percentage of employees vaccinated.

Requirement to Apply for a “Waiver” to the Rule Has Been Removed

Previously, the rule required any facility that did not achieve a 100% vaccination rate to apply for and obtain a waiver from the Board of Health from the vaccine requirement, which would arise if a facility granted a religious exemption. Because religious exemptions now count toward the 100% vaccination requirement, this rule has been struck in its entirety as unnecessary.

Verification & Documentation

The Colorado rule now requires that facilities verify that all newly hired employees, direct contractors, and support staff members have proof that they are fully vaccinated at the time of hire, or that they have received their first dose of a two-dose protocol prior to providing any services for a facility, unless they qualify for a medical or religious exemption.

The burden of recordkeeping proof of vaccination or a qualified exemption is on the facility. Each facility must maintain proof of immunization or a qualified exemption. For medical exemptions, the request for an exemption must be signed by a physician, physician assistant, advanced practice nurse, or certified nurse midwife licensed in Colorado, that indicates the COVID-19 vaccination is medically contraindicated for the individual requesting the exemption. In addition, the amended rules make clear that the signed documentation must also provide a timeframe for the medical exemption. This is meant to capture temporary medical exemptions for individuals recently diagnosed with COVID-19 or receiving other temporary treatments.

Reporting Requirements

The reporting requirements have been loosened substantially from the original rules. The prior version of the rules required that covered facilities provide twice monthly reports that contained the following information: (1) total number of covered employees; (2) total number of vaccinated covered employees; (3) number of medical exemptions claimed; (4) number of medical exemptions approved; (5) number of religious exemptions claims; and (6) number of religious exemptions approved.

Now, while employers must still make twice-monthly reports, covered facilities must report only one piece of information: the vaccination rate at the facility.

No Testing Requirement for Unvaccinated Employees

The mitigation protocols for employees granted an exemption have also been modified. Colorado has discarded a requirement that unvaccinated individuals at a facility be tested weekly, citing “concerns related to the cost and logistics of testing.” To be sure, the rules continue to permit employers to institute a weekly testing protocol for unvaccinated employees, as covered facilities are “encouraged to exercise business discretion and institute policies that exceed the minimum regulatory requirements if they feel that doing so is in the best interest of their clients, employees, and business.” However, weekly testing is no longer strictly required.

Some requirements for COVID-19 mitigation protocols do remain for all unvaccinated employees in the revised rules. Unvaccinated employees must wear PPE and maintain proper social distancing when possible, as well as comply with any other COVID-19 mitigation policies enacted by the facility.


While booster shots are recommended, they are not required for full compliance with the new rules.

What does this mean for Colorado employers?

Employers covered by the mandate should closely monitor additional guidance and further revisions to the rules to ensure compliance with the mandate. The state is holding a public comment session on December 15, 2021, and the proposed rules may be modified following this meeting. While the federal CMS rule is temporarily enjoined, employers in the healthcare sector in Colorado must ensure compliance with Colorado’s vaccine mandate immediately and continue to monitor the possible applicability of the CMS vaccine rules if the stay blocking their enforcement is lifted.

See Footnotes

* Laura Spector is a Pre-Bar Associate.

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.