The federal government released information about two new vaccine mandates. At this time, we believe that very few of our members would even be covered by either of these mandates if they survive the various court challenges being brought against them.
Here’s what we know right now.
There is a vaccine mandate that applies to certain healthcare facilities. Previously, this mandate was said to apply to any facility that “participates in” or receives funding from Medicare or Medicaid, but more accurately, the law only applies to those that are actively regulated by the Centers for Medicare & Medicaid Services (CMS). For at least the vast majority of CEDR members, this is NOT you.
The CMS mandate only applies to facilities regulated under the Medicare Conditions of Participation (CoPs), as those are the facilities that CMS has the legal authority to regulate. A full list of those facilities can be found here.
While a private medical or dental practice may have some relation to Medicare, that does not mean that it falls under this rule. According to the CMS itself, it “does not regulate health and safety in physician and dental offices,” therefore, cannot legally include these offices in its vaccine mandate for healthcare workers. CMS has a detailed FAQ on this mandate.
If you believe you fall into one of these categories, please let us know. However, based on what the government has released at this point, our interpretation is that it does not apply to private physician and dental offices. We also are keeping an eye out for any professional associations to release guidance on this topic. The ADA has interpreted the rule the same way we have, stating, “The CMS rule will apply to dentists working in Medicare or Medicaid facilities… but not private dental offices.”
Legal challenges have been filed contesting this mandate, but as of this date, the mandate appears to be moving forward in effect.
OSHA Large Employer Mandate
If you have 100 or more employees, then the large employer mandate under a new OSHA ETS would apply to your business. However, at this time, that mandate is on hold and not being enforced.
Legal actions have been filed against the mandate across the country resulting in the 5th Circuit Court of Appeals issuing an injunction that prevents OSHA from enforcing this law pending further legal review. Each of the separate lawsuits have now been consolidated and will be heard by the 6th Circuit Court of Appeals. The nerdy court watchers (ourselves included) think it’s unlikely that the 6th Circuit will allow OSHA to move forward with this rule, but there are still a number of variables that will affect the ultimate outcome.
If the OSHA ETS were to go into effect, it would require you to have a policy in effect as of December 6th that requires either that all employees are vaccinated or that the unvaccinated employees get tested regularly. The testing would need to start by January 4th. Depending on your state, there could be stricter rules going into place through state-level OSHA governance.
For now, we are advising all members to hit the pause button while we continue to monitor how this progresses through the courts. Of course, that could change overnight with a ruling. Once it becomes clear what you need to do, we will provide you forms and explanations of your obligations, if any. If you have questions about the OSHA ETS details, the good news is that OSHA has already released a lot of details about the mandate, including sample policies.
If you’re a CEDR Member who still has questions, please check out our member forum or reach out to the Solution Center for one-on-one guidance on this issue. Not a CEDR Member? Schedule an appointment to see if CEDR Membership could offer you support as you manage your practice.