Previous blog posts provided an overview of the Centers for Medicare and Medicaid Services’s (“CMS”) Vaccine Mandate and addressed whether boosters are required. To continue supporting our healthcare and business law firm’s clients, herein we have tackled more specific questions about CMS’s Vaccine Mandate. This blog post outlines CMS’s current stance on whether remote workers and executives are required to be vaccinated if the practice falls under CMS’s vaccine mandate. As always, the analysis herein is current as of the date this blog is posted and subject to change as agencies and courts release new decisions.
If you have questions regarding this blog post or the applicability of state and federal regulations to you or your medical practice, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, email@example.com. You may also learn more about our law firm by visiting www.hamillittle.com.
Although the mandate applies to offsite workers, it does not apply to staff who telework full time. Throughout the federal register Interim Final Rule (“IFR”) and CMS guidance, teleworking full-time means “100 percent of their time is remote from sites of patient care, and remote from staff who do work at sites of care.” Note, also, the IFR states: “Facilities that employ or contract for services by staff who telework full-time . . . should identify and monitor these individuals as a part of implementing the policies and procedures of this IFC, documenting and tracking overall vaccination status.”
A more difficult question to answer is whether executives are required to be vaccinated. Reviewing the IFR and guidance from CMS shows a broad interpretation of who the mandate applies to. Specifically, CMS provides:
In order to best protect patients, families, caregivers, and staff, we are not limiting the vaccination requirements of this IFC to individuals who are present in the facility or at the physical site of patient care based upon frequency. Regardless of frequency of patient contact, the policies and procedures must apply to all staff, including those providing services in home or community settings, who directly provide any care, treatment, or other services for the facility and/or its patients, including employees; licensed practitioners; students, trainees, and volunteers; and individuals who provide care, treatment, or other services for the facility and/or its patients, under contract or other arrangement.
The term “executive” is not used in the IFR or other guidance. However, within the IFR, CMS states the mandate “includes administrative staff, facility leadership, volunteer or other fiduciary board members, housekeeping and food services, and others.” Furthermore, CMS in its FAQ shows its intent to broadly cover individuals:
Q: Does this requirement apply to staff who work offsite?
A: Yes. These requirements are not limited to those staff who perform their duties solely within a formal clinical setting, as many health care staff routinely care for patients and clients outside of such facilities (e.g. home health, home infusion therapy, etc.). To ensure maximum patient protection, all staff who interact with other staff, patients, residents, clients, or PACE program participants in any location beyond the formal clinical setting (such as homes, clinics, other sites of care, administrative offices, off-site meetings, etc.) must be vaccinated.
Although there is no clear answer to the question of whether executives across the board must be vaccinated if working for a facility that falls under the mandate, it is clear that CMS intends to interpret the requirement broadly. The closer the executive is to other staff, the more likely it is the executive is required to be vaccinated.
If you have questions regarding this blog post or the applicability or the applicability of state and federal regulations to you or your medical practice, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, firstname.lastname@example.org. You may also learn more about our law firm by visiting www.hamillittle.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.