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This is part of a series of articles by Wright Lindsey Jennings’ attorneys examining key trends for employers and the workplace in 2021, authored by attorney Jennifer Smith. The article was originally featured in Arkansas Business and below is the most recent update.
The Centers for Medicare and Medicaid Services (CMS) vaccine mandate went into effect on November 5, 2021 and required most Medicare and Medicaid-certified providers and suppliers (covered entities) to ensure their “staff” become fully vaccinated against COVID-19 by January 4, 2022, unless exempted as allowed by federal law. Covered entities are required to comply with the mandate to continue participating in the Medicare and Medicaid programs.
The term “staff” is broadly defined to include employees, contractors, students, trainees, volunteers, and licensed practitioners who provide care, treatment or other services to the facility or its patients (regardless of clinical responsibility or patient contact). Staff also includes any such individuals who interact with other staff, patients, residents, clients, or participants of the covered entity in any location, regardless of clinical responsibility or patient contact. Only those staff who work remotely 100% of the time are exempt from the vaccine mandate.
CMS determined that this broad definition of staff is necessary to protect the health and safety of Medicare and Medicaid beneficiaries as well as the health and safety of those who care for these beneficiaries. Due to this broad definition, many healthcare providers who are not directly required to comply with the vaccine mandate are being asked to comply by hospitals, home health agencies, hospices, long-term care facilities, and other covered entities because they either provide services to the covered entity or are a member of the covered entity’s medical staff and therefore fall within the CMS definition of staff.
The vaccine mandate was quickly challenged. Just five days after the mandate went into effect, ten states, including Arkansas, filed a lawsuit in federal court in Missouri challenging the mandate as overbroad and requesting an injunction to prevent CMS from imposing the mandate pending full judicial review. Soon thereafter, an additional 14 states filed a similar challenge in federal court in Louisiana. Separate lawsuits were also filed by Florida and Texas.
On December 2, 2021, in response to these lawsuits, CMS issued a memo suspending enforcement of its COVID-19 vaccine mandate in the states where lawsuits were pending, including Arkansas.
Courts in Missouri, Texas, and Louisiana granted injunctions preventing CMS from enforcing the mandate until the cases were fully resolved. The request for injunction in Florida, however, was denied. The losing parties promptly appealed these decisions. The 11th Circuit Court of Appeals upheld the Florida decision denying the injunction.
In contrast, the 8th Circuit Court of Appeals upheld the Missouri district court’s decision to impose injunctions in the 10 states that had filed suit in Missouri, which included Arkansas, until the case was resolved. The 5th Circuit upheld the Louisiana district court’s injunction, with respect to the 14 states that had filed suit in Louisiana.
In response to these decisions, on December 16, 2021, the Biden Administration asked the U.S. Supreme Court to overturn the preliminary injunctions and allow the vaccine mandate to take effect while the lawsuits are pending.
On January 13, 2022, the U.S. Supreme Court did just that when it issued a decision allowing CMS to implement its vaccine mandate for Medicare-funded facilities. The Supreme Court’s decision supersedes Arkansas Act 1113, which went into effect on the same day the Supreme Court issued its decision and requires employers to include an exemption process in any COVID-19 vaccine mandate policy that allows employees to either provide the employer with a negative COVID test on a weekly basis or proof of immunity not more than once every six months.
As a result, all Arkansas covered entities should immediately begin implementing their vaccine policies in accordance with the mandate that went into effect on November 5, 2021. The new deadlines for covered entities to comply with the CMS vaccine mandate for Arkansas are February 14, 2022 (workforce members have received first the dose of COVID-19 vaccine) and March 15, 2022 (workforce members have completed full primary vaccination series or been granted an allowed exemption).