CMS and OSHA issue vaccine mandate rules for healthcare providers

CMS and OSHA issue vaccine mandate rules for healthcare providers

The Centers for Medicare & Medicaid Services (CMS) and the Occupational Safety and Health Administration (OSHA) issued COVID-19 vaccine mandate rules on Thursday, Nov. 4, 2021. These rules were included in the CMS Interim Final Rule and the OSHA Emergency Temporary Standard (ETS).

CMS is requiring that healthcare workers at facilities participating in Medicare and Medicaid be fully vaccinated, and OSHA is requiring employers with more than 100 employees to ensure that each of their workers is fully vaccinated or that they test negative for COVID-19 at least once a week. These vaccine requirements include volunteers and may also affect visitors, depending on the type of facility and organization.

The deadlines for the requirement for employees of federal contractors to be fully vaccinated as well as the OSHA and CMS rules have been aligned and set for Jan. 4, 2022. Together, the OSHA and CMS rules, along with other Biden administration policies, means that over two-thirds of all U.S. workers are now covered by vaccination policies.


OSHA’s ETS requires employers to develop, implement and enforce a mandatory COVID-19 vaccination policy under which employees could choose to either be vaccinated or undergo weekly COVID-19 testing and wear a face covering at work. The mandate does not require the employer to pay for the weekly testing if that is the choice of the employee, unless this has been included in collective bargaining agreements.

OSHA’s ETS also requires employers to provide paid time off to workers to get vaccinated and paid leave to recover from any side effects of a vaccination that keep employees from being able to work. OSHA is providing robust compliance assistance to businesses implementing the standard and will enforce its rule through planned inspections with penalties for non-compliance.

CMS’ emergency regulation

The emergency regulation issued by CMS requires staff vaccinations for COVID-19 across Medicare- and Medicaid-certified healthcare providers, including, but not limited to, post-acute facilities, nursing homes, hospitals, dialysis facilities, ambulatory surgical settings and home health agencies. The timeframe provided in the CMS vaccination mandate states that within 30 days (i.e., Dec. 5, 2021), providers must:

  • Implement plans for staff vaccinations;
  • Implement plans to document medical and religious exemptions and accommodations, including regular testing and where these employees are assigned to work in the facility; and
  • Document all staff vaccinations

By Dec. 5, 2021, staff that have not received an exemption or accommodation must have received at least the first dose of a multi-dose vaccination (i.e., Pfizer or Moderna) or have received the one dose vaccine (i.e., Johnson & Johnson). By Jan. 4, 2022, facilities must ensure that all staff that do not have an exemption should have received the necessary shots to be fully vaccinated (i.e., either both doses of Pfizer or Moderna, or one dose of Johnson & Johnson). There is no testing option for healthcare workers.

For Medicare- and Medicaid-certified providers, these vaccination regulations supersede all others, including state regulations and those issued by OSHA. CMS will ensure compliance through CMS’ survey and enforcement processes.

CMS is providing support explaining the requirements for healthcare facilities participating in the Medicare and Medicaid programs. The goal is to bring healthcare facilities into compliance, and facilities will have the opportunity to make corrections to come into compliance. However, for facilities not complying, there will be a range of remedies, including civil monetary penalties, denial of payment, and, finally, termination from the Medicare and Medicaid programs.


More than 40% of all U.S. hospitals and health systems have announced COVID-19 vaccination requirements for their workforces, or are in states that have such requirements. Leading healthcare organizations, including the American Medical Association, American Hospital Association, American Nurses Association, and the American Academy of Pediatricians, have also called for mandatory COVID-19 vaccinations for healthcare workers to protect the safety of patients and residents of long-term care facilities and to make the healthcare sector a leader in COVID-19 vaccinations.

For more information on this topic, or to learn how Baker Tilly’s clinical advisory specialists can help, contact our team.

Mark Ross
David A. Gregory
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