CMS vaccinated mandate, Federal Contractor vaccination requirements updated, EEOC updates guidance on exemptions, guidance on HIPAA
CMS interim final rule
The Centers for Medicare & Medicaid Services (CMS) issued an interim final rule requiring COVID-19 vaccinations for workers in most health care settings, including hospitals and health systems, that participate in the Medicare and Medicaid programs. The rule is effective as of Nov. 5 and all eligible workers must be fully vaccinated by Jan. 4, 2022.
For this mandate, there is no testing option for those who wish to remain unvaccinated, barring protected health or religious exemptions. The rule applies to employees regardless of whether their positions are clinical or non-clinical and includes employees, students, trainees, and volunteers who work at a covered facility that receives federal funding from Medicare or Medicaid. It also includes individuals who provide treatment or other services for the facility under contract or other arrangements. Among the facility types covered by the rule are hospitals, ambulatory surgery centers, dialysis facilities, home health agencies, and long-term care facilities. It covers approximately 76,000 health care facilities and more than 17 million health care workers.
Federal contractor vaccination updates
The deadline for the federal contractor vaccination requirement has been extended to Jan.4, 2022, to align with the ETS and CMS rule. Also, new Q & A's were added to the Guidance for Federal Contractors and Subcontractors. New questions relate to accommodations, medical conditions the CDC considers to be contraindications to vaccination with COVID-19 vaccines, pregnancy, delaying vaccinations, compliance by subcontractors, and more.
In late October, nineteen states filed four separate lawsuits to stop the COVID-19 vaccine mandate for federal contractors and block the original Dec. 8 deadline, arguing that the requirement violates federal law and is an overreach of federal power. According to the Associated Press, Attorney Generals from Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming signed on to one lawsuit, which was filed in a federal district court in Missouri. Another group of states including Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia filed a lawsuit in federal district court in Georgia. Texas and Florida sued individually.
EEOC updates its COVID-19 guidance and adds a section on Title VII and Religious Objections to COVID-19 Vaccine Mandates
The Equal Employment Opportunity Commission (EEOC) recently updated its guidance on COVID-19 and EEOC laws by adding new questions to Section K (Vaccinations - Overview, ADA, Title VII, and GINA), and adding six religious accommodation-based questions and answers in a new Section L (Vaccinations - Title VII and Religious Objections to COVID-19 Vaccine Mandates). (See HR Tip for more details)
Guidance on HIPAA issued to clarify when HIPAA rules apply to disclosures about vaccinations
A common misconception widely promoted on social media is that it is a HIPAA violation to request information on vaccination status. The HIPAA Privacy Rule only applies to HIPAA-covered entities (health plans, health care clearinghouses, and health care providers that conduct standard electronic transactions), and, in some cases, to their business associates, not employers or employment records.
On September 30, the Department of Health and Human Services Office for Civil Rights issued Q & A guidance, HIPAA, COVID-19 Vaccination, and the Workplace, to increase understanding of when the HIPAA Privacy Rule applies to disclosures and requests for information about whether a person has received a COVID-19 vaccine. It also addresses when it is appropriate for covered entities to release or request protected health information ("PHI") related to an individual's COVID-19 vaccination status.