What Healthcare Employers Need to Know About the Centers for Medicare & Medicaid Vaccine Mandate

The Centers for Medicare & Medicaid Services (CMS) has issued an Interim Final Rule (IFR) establishing the COVID-19 vaccination requirements for staff employed at Medicare- and Medicaid-certified providers and suppliers.

The IFR requires covered staff to be fully vaccinated against COVID-19 by January 4, 2022, or have received an approved religious or medical exemption or deferral by that date.


In the preamble to the IFR, CMS states that covered providers and suppliers must comply with federal anti-discrimination laws, including the Americans with Disabilities Act and Title VII of the Civil Rights Act, and, therefore, may be required to give an exemption to the vaccination requirement as an accommodation under those laws.

The IFR provides, in part, that:

Healthcare Entities Covered

The IFR applies to the following Medicare- and Medicaid-certified providers and suppliers:

The requirements do not apply directly to:

However, the IFR’s preamble clarifies that staff working for these organizations may indirectly be subjected to the requirements if under contract with other healthcare entities that are subject to CMS vaccine requirements. For instance, if a staff member of an Organ Procurement Organization goes onsite to a covered hospital to perform services, they are likely indirectly covered.

Staff Covered

For most settings, the vaccination requirement applies to all staff, regardless of clinical responsibility or patient contact. All current and new staff who provide any care, treatment, or other services for the facility or its patients are covered. The IFR also applies to nonemployees, such as students, trainees, volunteers, and individuals who provide care, treatment, or other services for the facility or its patients under contract or other arrangement.

There is a limited exception to the vaccination requirement for staff who provide services completely remotely, such as fully remote telehealth or payroll services. However, vaccination is required for staff who primarily provide services through telework, but may sometimes encounter fellow staff who will enter a healthcare facility or site of care for their job responsibilities.

Penalties for Noncompliance

CMS will issue interpretative guidelines, including survey procedures, to govern enforcement. Depending on the level of noncompliance, covered providers and suppliers may face civil money penalties, denial of payment for new admissions, or termination of the Medicare/Medicaid provider agreement.

Next Steps

The IFR was published in the Federal Register on November 5, 2021, and comments will be accepted for 60 days, until January 4, 2022, but the IFR will go into effect immediately, with key compliance deadlines of December 5, 2021, and January 4, 2022, as discussed above. There is no sunset provision.

Meanwhile, covered providers and suppliers should:

Many questions remain unanswered, including the application of the IFR in jurisdictions where mandatory vaccines are prohibited. The IFR’s preamble states that the IFR preempts any such state or local laws. Similarly, the IFR provides that any exemptions for religious or medical reasons must be based on federal law, not addressing the applicability, if any, of state religious or medical accommodation standards. Employers should seek legal counsel for advice on these and other thorny issues.

Jackson Lewis P.C. © 2024
National Law Review, Volumess XI, Number 309