Questions Still Surrounding the Vaccine Mandate: Compliance Date Set for December 8

Published in Government Relations on November 02, 2021

As you may recall, last month the White House administration announced a vaccine mandate for employers with more than 100 employees, as well as a mandate on healthcare workers (HME suppliers included). We’ve been taking many questions from our members on this issue. Many are asking if this really take effect and what steps to be taking now.

So, will this really take effect?

According to this Forbes magazine article from October 29, there are currently approximately 10 states whose attorney generals and governors (Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming) are pursuing lawsuits alleging the vaccine requirement violates federal procurement laws, the 10th Amendment, the separation of powers, and the Administrative Procedure Act, arguing the mandate is “unconstitutional, unlawful, and unwise.”

Reuters reports some flexibility regarding the deadline of December 8. Jeff Zients, White House counselor, has said he does not expect any disruptions to the U.S. economy as a result of the mandate. "We’re creating flexibility within the system … There is not a cliff here," Zients said, emphasizing the goal is to get people vaccinated, "not to punish them so we do not expect any disruptions."

Below are two extracts from President Biden’s Path Out of the Pandemic Initiative

Requiring All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

Requiring COVID-19 Vaccinations for Over 17 million Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings

The Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action builds on the vaccination requirement for nursing facilities recently announced by CMS, and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. These requirements will apply to approximately 50,000 providers and cover a majority of health care workers across the country. Some facilities and states have begun to adopt hospital staff or health care sector vaccination mandates. This action will create a consistent standard across the country, while giving patients assurance of the vaccination status of those delivering care.

Click here to read President Biden’s full Path out of the Pandemic.

Does this mandate on healthcare workers include DMEPOS suppliers/employers? Yes, Nordian addressed this in their September 9 MLN Special Edition. The Biden-Harris Administration will require COVID-19 vaccination of staff within all Medicare and Medicaid-certified facilities to protect both them and patients from the virus and its more contagious Delta variant. Facilities across the country should make efforts now to get health care staff vaccinated to make sure they are in compliance when the rule takes effect.

Click here to find the following business types that are included in the definition of “facilities.” It does include DME:

Durable medical equipment suppliers (DMEs)

Click here for the full article from Noridian.

Suggested next steps for HME suppliers or any employers over 100 people:

Reach out to your human resources department and put together a plan of action. Be ready if/when the mandate takes effect.
Keep a watchful eye on your local/state news regarding their actions on this mandate.

We at VGM are monitoring the events and will continue to keep you updated as new developments/guidance occurs.

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