The Biden administration has announced that the federal government will wind down its remaining COVID-19 vaccination mandates (including those for federal workers, contractors and international air travelers) effective May 11, 2023. This action coincides with the conclusion of the COVID-19 public health emergency (PHE). Additionally, the US Department of Health and Human Services (HHS) will initiate steps to terminate the vaccination prerequisites for healthcare facilities that are certified by the Centers for Medicare & Medicaid Services (CMS).
The Centers for Medicare & Medicaid Services (CMS) released guidance for surveyors that provides leeway in surveying for compliance with the November 2021 interim final rule with comment that imposed a vaccination mandate for most staff at certain covered provider types.
On August 11, 2022, the Centers for Disease Control and Prevention (CDC) unveiled its updated COVID-19 guidelines, revising both quarantine and isolation guidelines in the process. The updates reflect the growing number of vaccinated individuals (meaning, those individuals who have received initial doses and all recommended boosters) and past exposures, leading to a greater level of herd immunity than in previous eras of the virus. These adjustments to the CDC’s guidance also serve, in large part, to clarify existing recommendations or to loosen restrictions. This article provides a closer look at what exactly the updated guidance requires and how to best approach these updates in the workplace.
According to this Politico article, the US Centers for Medicare and Medicaid Services (CMS) has had difficulty enforcing its own COVID-19-related hospital rules. The agency often lacks the necessary resources to make sure its regulations are followed. McDermott Partner Sandra M. DiVarco said small changes—like allowing patients to wear highly protective N95 face masks—that CMS publicizes are “not always very coordinated.”
Many employers will likely encourage vaccination rather than mandate it. In this Ladders article, McDermott Partner Michelle Strowhiro notes the administrative burdens associated with tracking mandatory employee vaccination.
On March 17, 2022, New York State’s Commissioner of Health ended the designation of COVID-19 as an airborne infectious disease that presents a serious risk of harm to public health under the New York Health and Essential Rights (HERO) Act. As of that date, private sector employers in New York State are no longer required to implement their workforce safety plans.
Congressional inaction may prevent a more robust federal government COVID-19 response, according to this Washington Post article. A $15 billion COVID-19 funding bill recently collapsed in Congress, potentially crippling testing, treatment and vaccine access. McDermott+Consulting’s Rodney Whitlock said not enough “spadework” was done to get compromises across the finish line.
As the world enters the third year of the COVID-19 pandemic, employers have gained a greater understanding about the virus’ relationship with US anti-discrimination laws. With the inevitable rise of future variants and long-haul COVID-19 cases, however, businesses are still navigating murky waters. In thisLaw360 article, McDermott Partner Lindsay Ditlow offers perspective about worker accommodation requests and what they mean for employers.
US employers have grown increasingly interested in identifying incentives that increase COVID-19 vaccination among employees. The US Departments of Labor, Treasury and Human and Human Services recently issued guidance regarding the application of the Health Insurance Portability and Accountability Act (HIPPA) wellness rules to vaccine-related premium surcharges and discounts, clarifying that employers may charge vaccine premium incentives if they adhere to the requirements of activity-only health-contingent programs. In this Employee Benefit Plan Review article, McDermott Partner Judith Wethall and McDermott Associate Sarah G. Raaii outline what this HIPPA guidance means for employers.
The US Supreme Court’s January ruling allowing the Centers for Medicare & Medicaid Services to enforce its COVID-19 mandate is likely to continue to face challenges. Nevertheless, in this article published by the Health Care Compliance Association, McDermott Partner Sandra DiVarco said that the Supreme Court’s decision wasn’t a surprise.
“Many of [the CMS] providers may have slow-walked their compliance and now in theory need to be fully compliant,” DiVarco noted.
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