Kerry Dooley Young
November 04, 2021
The Biden administration on Thursday unveiled its rule to require most of the country's larger employers to mandate workers be fully vaccinated against COVID-19, but set a Jan. 4 deadline, avoiding the busy holiday season.
The White House also shifted the timelines for earlier mandates applying to federal workers and contractors to Jan. 4. And the same deadline applies to a new separate rule for health care workers.
The new rules are meant to preempt "any inconsistent state or local laws," including bans and limits on employers' authority to require vaccination, masks, or testing, the White House said in a statement.
The rule on employers from the Occupational Safety and Health Administration will apply to organizations with 100 or more employees. These employers will need to make sure each worker is fully vaccinated or tests for COVID-19 on at least a weekly basis. The OSHA rule will also require that employers provide paid time for employees to get vaccinated and ensure that all unvaccinated workers wear a face mask in the workplace. This rule will cover 84 million employees.
The OSHA rule will not apply to workplaces covered by either the Centers for Medicare and Medicaid Services (CMS) rule or the federal contractor vaccination requirement.
While it's unclear yet how well the new Biden initiatives will play out as mandates, they have served to reinforce a message about the need for widespread vaccination to combat COVID-19.
"The virus will not go away by itself, or because we wish it away: We have to act," President Joe Biden said in a statement. "Vaccination is the single best pathway out of this pandemic."
Mandates were not the preferred route to managing the pandemic, he said.
"Too many people remain unvaccinated for us to get out of this pandemic for good," he said. "So I instituted requirements — and they are working."
The White House said 70% percent of U.S. adults are now fully vaccinated — up from less than 1% when the Biden took office in January.
The CMS vaccine rule is meant to cover more than 17 million workers and about 76,000 medical care sites, including hospitals, ambulatory surgery centers, nursing homes, dialysis facilities, home health agencies, and long-term care facilities. The rule will apply to employees whether their positions involve patient care or not.
Unlike the OSHA mandate, the one for health care workers will not offer the option of frequent COVID-19 testing instead of vaccination. There is a "higher bar" for health care workers, given their role in treating patients, so the mandate allows only for vaccination or limited exemptions, a senior administration official said Wednesday night on a call with reporters.
The CMS rule includes a "range of remedies," including penalties and denial of payment for health care facilities that fail to meet the vaccine mandate. CMS could theoretically cut off hospitals and other medical organizations for failure to comply, but that would be a "last resort," a senior administration official said. CMS will instead work with health care facilities to help them comply with the federal rule on vaccination of medical workers.
The new CMS rules apply only to Medicare- and Medicaid-certified centers and organizations. The rule does not directly apply to other health care entities, such as doctor's offices, that are not regulated by CMS.
"Most states have separate licensing requirements for health care staff and health care providers that would be applicable to physician office staff and other staff in small health care entities that are not subject to vaccination requirements under this IFC," CMS said in the rule.
The new initiatives drew both quick praise and condemnation, as could have been anticipated.
Republican officials such as Texas Attorney General Ken Paxton already had raised questions about the White House's ability to impose COVID-19 vaccine mandates. Paxton on Thursday tweeted his plans to challenge the Occupational Safety and Health Administration (OSHA) mandate on employers.
Karen Harned, executive director of the National Federation of Independent Business, said the OSHA rule “restricts the freedom of small business owners to decide how best to operate their own businesses and imposes unwarranted burdens on small businesses that further threaten the small business recovery.”
In a Thursday statement, Mark Parkinson, chief executive officer of the American Health Care Association, said his group supported the overall intent of this CMS policy, but worried about losing staff.
“Nursing home providers have dedicated themselves to increasing staff vaccination rates, and as a result, three-quarters of employees are fully vaccinated today,” Parkinson said. “A hard deadline with no resources for providers or glide path for unvaccinated workers is likely to push too many out the door and ultimately, threaten residents' access to long term care.”
The American Medical Association (AMA), the American Hospital Association (AHA) and the Infectious Disease Society of America (IDSA) each issued statements supporting the CMS rule.
AMA President Gerald E. Harmon, MD, noted that his organization had in July urged health care and long-term care employers “to leverage vaccine mandates to combat the spread of COVID-19.”