CMS, OSHA suspend enforcement of vaccine mandate, seek further comment

CMS has joined with OSHA in suspending its mandate for COVID-19 vaccination of healthcare workers while the interim final rule is under a legal challenge.

Hospitals are welcome to voluntarily enforce the requirement anyways, says CMS.

In a December 2 memo to state survey agencies, QSO-22-04-ALL, CMS told surveyors not to survey to the vaccination rule until further notice.

According to the memo, CMS “will not enforce the new rule regarding vaccination of health care workers or requirements for policies and procedures in certified Medicare/Medicaid providers and suppliers (including nursing facilities, hospitals, dialysis facilities and all other provider types covered by the rule) while there are court-ordered injunctions in place prohibiting enforcement of this provision.”

The memo noticed the injunctions granted in federal courts based in two districts in late November. “Between the two of them, these injunctions cover all states, the District of Columbia and the U.S. Territories. CMS has appealed both of these decisions, and has filed motions for stays of these orders,” says the memo.

“While CMS remains confident in its authority to protect the health and safety of patients in facilities certified by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation.

“Accordingly, while these preliminary injunctions are in effect, surveyors must not survey providers for compliance with the requirements of the Interim Final Rule. Health care facilities, of course, may voluntarily choose to comply with the Interim Final Rule.”

On December 1, OSHA announced that it was extending public comment on its own mandate for employers with 100 or more employees to either require vaccinations or regularly testing. OSHA suspended implementation of its emergency temporary standard in mid-November, also because of legal challenges.

OSHA has extended the public comment period until January 19, 2022. (The original comment deadline was January 4.)

The ETS is on the Federal Register as Docket No. OSHA-2021-0007. You can file electronically at, which is the Federal e-Rulemaking Portal and the only way to submit comments on this rule, according to OSHA.

OSHA also asks that you follow the online instructions for making electronic submissions. You can read the Nov. 5, 2021 Federal Register notice on the ETS for details.

The ETS, according to OSHA, is designed to “protect workers from the spread of coronavirus on the job.” Employers with 100 or more employees “must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to either get vaccinated or undergo regular COVID-19 testing and wear a face covering at work.”

The rule originally had an effective date of 30 days after publication for implementation of testing and 60 days after publication for the vaccine requirement.

You can find more information, including a rule summary and fact sheets, at OSHA’s COVID-19 Vaccination and Testing ETS webpage.

Source: Accredition and Quality Compliance Center