In our previous blog (Supreme Court Blocks OSHA ETS But Upholds CMS Vaccine Mandate), we updated you on the United States Supreme Court’s upholding of the Center for Medicare and Medicaid Services’ (“CMS”) rule, requiring all staff for certain Medicare-certified providers to be vaccinated.
Prior to this decision, the CMS rule was temporarily enforceable in some states (including Minnesota), but enforcement was blocked in other states (including North Dakota) by lawsuits challenging the rule. CMS previously issued guidance related to when covered entities must comply with the rule. After the Supreme Court upheld the rule for all states, the question became when all covered facilities, including those in states where compliance was previously blocked, must comply with the rule.
On January 14, CMS issued updated guidance to clarify its compliance dates:
– For those covered facilities in states where the CMS was enforcing the rule prior to the Supreme Court decision (such as Minnesota) – CMS will expect facilities to implement the required policies and procedures and have 100% of staff with at least one vaccine dose (or a pending request for qualifying exemption) by January 27, 2022. By February 26, 2022, these facilities must have 100% of staff fully vaccinated or granted a qualifying exemption.
– For those covered facilities in states where the enforcement of the CMS rule was originally blocked (such as North Dakota) – the deadline for 100% of staff to receive at least the first dose (or an exemption) is February 13, 2022. The deadline for staff to be fully vaccinated (or receive an exemption) is March 15, 2022.
Employers not subject to the CMS rule may, nonetheless, be looking to impose vaccine requirements in the workplace, particularly with the Omicron surge having now hit North Dakota. Such employers generally may do so, but must remember that a new North Dakota law requires employers to consider certain additional exemptions beyond those required by federal law, including: 1) proof of COVID-19 antibodies (valid for 6 months from the date of the test), 2) periodic COVID-19 tests, or 3) submission of medical, religious, philosophical, or moral exemptions.
Should there be additional or new guidance with respect to the implementation of the CMS or any other COVID-19 related employment issues, the Employment Law Group with Vogel Law Firm is available to consult and assist.