For now, the Biden administration’s sweeping vaccination requirement for large employers is on hold after a federal appeals court blocked the regulation from going into effect, quickly responding to a lawsuit from Texas and other states. And last week, the federal government announced it was suspending enforcement of the regulation.
If eventually implemented, however, the administration’s rule, issued as part of a pair of regulations on Nov. 4, will carry implications for physicians in larger practice settings.
The regulation that Texas challenged in court – and that was temporarily blocked by a Nov. 6 ruling – came from the Occupational Safety and Health Administration (OSHA). It requires all employers with 100 or more employees to ensure their workers are fully vaccinated. This rule applies to practices with 100 “full-time equivalents,” meaning full- and part-time workers who do the work of 100 full-time employees, including those spread out across multiple locations. The OSHA regulation offers a testing option for unvaccinated staff. In such cases, employers must require unvaccinated employees to provide a negative COVID test result on at least a weekly basis and wear a mask in the workplace.
In a statement announcing Texas’ lawsuit, Attorney General Ken Paxton called the regulation “a breathtaking abuse of federal power.” Last week, before OSHA announced it was suspending enforcement, Gov. Greg Abbott filed a petition in federal court challenging the mandate, calling it an "unconstitutional power grab."
Meanwhile, a second emergency regulation from the Centers for Medicare & Medicaid Services (CMS), also issued on Nov. 4, does not apply to independent physician practice settings. But it does affect staff – including physician contractors and those with admitting privileges – at hospitals, nursing homes, federally qualified health centers, and other large health care facilities.
“Today’s action addresses the risk of unvaccinated health care staff to patient safety and provides stability and uniformity across the nation’s health care system to strengthen the health of people and the providers who care for them,” CMS Administrator Chiquita Brooks-LaSure said in a statement.
Facilities covered by this regulation must establish policies to ensure:
- Eligible staff have received the first dose of a two-dose vaccine or the sole dose of a one-dose vaccine prior to providing any care, treatment, or other services by Dec. 5;
- Eligible staff are fully vaccinated by Jan. 4; and
- Any exemptions based on recognized medical conditions or religious beliefs align with federal law.
Texas physicians who do not work in small, private practice settings can expect their workplace policies to change as a result of one or both of these regulations. “Now their place of employment, such as their local hospital, will have to meet and make decisions about how to comply,” said Robert Bennett, vice president of medical economics for the Texas Medical Association.
Although Governor Abbott issued an executive order in October that prohibits government vaccine mandates, an FAQ published by CMS says these federal regulations trump state law.
In its announcement, CMS pointed to an Oct. 7 White House report that shows vaccine requirements work to improve vaccination rates and have not caused widespread resignations in the health care workforce, which is a particular concern amid an ongoing staffing crisis.
CMS’ goal is to bring health care facilities into compliance, but the federal agency may also leverage enforcement remedies, including civil monetary penalties, denial of payment, and even termination from the Medicare and Medicaid program.