In November 2021, the Centers for Medicare and Medicaid Services (CMS) released its long-awaited and highly anticipated interim final rule (IFR) requiring health care workers to be vaccinated for the COVID-19 virus.
The Occupational Safety and Health Administration (OSHA) also released its emergency temporary standard requiring vaccination or weekly testing for the COVID-19 virus for employers with 100 employees or more. However, the U.S. Court of Appeals for the Fifth Circuit has temporarily suspended the temporary standard in BST Holdings LLC v. OSHA.
One notable difference between the two rules is that there is no weekly testing option for health care workers. While OSHA’s rule for private employers allows employees to choose weekly testing instead of vaccination, the IFR does not give health care workers this option. Instead, health care workers must get vaccinated unless they can show a religious or medical reason for an exemption.
The CMS rule is also noticeably different from the OSHA emergency temporary standard for private employers. It does not explicitly require testing of workers who remain unvaccinated because they have been granted an exemption for medical or religious reasons.
The IFR’s potential impact on health care employers could exacerbate staffing shortages. It is no secret that health care workers, especially those front-line workers, are badly needed in facilities throughout the country. Health care workers were some of the first workers to receive the COVID-19 vaccination in 2020, but many of them remain unvaccinated.
As the highly-debated vaccination issue has divided some Americans, health care workers have had early access to vaccination and information about vaccination. Presumably, any health care worker who is unvaccinated makes that their personal choice.
This uncertainty and shortage make the approaching deadline for vaccinations even more ominous for employers. As a result, many health care employers are looking for ways to maintain staffing are well aware of the impact that staff shortages may have on patient safety and the quality of patient care.
CMS acknowledges this issue in its commentary but states that the industry has seen widespread compliance with mandates rather than a mass of employees quitting their jobs. CMS provides examples of several large health systems that have seen upward of 99% compliance. In other industries, like public safety, initial fears that the vaccine mandate might cause an epidemic of worker shortages, never came to fruition.
Many health care facilities, particularly smaller facilities, cannot afford even the slightest reduction in staff, which is not acknowledged in the CMS commentary. Moreover, even a loss of 1% of staff is significant for facilities that are struggling already.
The rules leave health care employers with unanswered questions about addressing accommodation requests, especially for workers who object because of religious reasons. Unfortunately, the rule offers little advice for handling religious accommodation requests.
CMS does not provide much information about any procedure for handling exemptions, especially in the current health care environment. Although CMS clearly states that health care employers must provide medical and religious accommodations consistent with federal anti-discrimination laws; federal law also requires employers to document the process and decision.
Health care facilities that have already implemented vaccine mandates have received a substantial number of exemption requests for religious reasons. In addition, many health care employers have asserted that any accommodation request requiring exemption from the COVID-19 vaccination by front-line workers is an undue burden. These employers stress that unvaccinated employees may pose a direct threat to the health and safety of patients and other front-line workers, especially with the development of the delta variant.
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