U.S. Supreme Court Reinstates CMS Vaccine Mandate Rule

By Erica Honig, Compliance Director, Employee Benefits John Meder, Head of Risk Consulting & Claims Advocacy Amy Hahn, Director, National Loss Control Practice, Travis Bennett, Director of Loss Control

U.S. Supreme Court Reinstates CMS Vaccine Mandate Rule

On January 13, 2022, the U.S. Supreme Court lifted lower court injunctions that had temporarily blocked enforcement in 25 states of the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule requiring healthcare worker vaccinations (CMS Rule or the Rule).

The CMS Rule applies nationwide to healthcare providers, support or suppliers that are regulated under CMS health and safety standards including hospitals, nursing homes, rehabilitation clinics, and other facilities that receive Medicare or Medicaid funds.


On November 5, 2021, the Center for Medicare & Medicaid Services (CMS) issued its own regulations for certain healthcare facilities that participate in the Medicare and Medicaid funding and reimbursement programs to require all staff to be fully vaccinated by certain dates. The CMS Rule applies broadly to all staff including employees and nonemployees (e.g., students, trainees, volunteers and contractors) of these facilities who provide care, treatment, or other services. The CMS Rule does not provide an option for weekly testing of staff. The Rule was temporarily blocked in 25 states as a result of litigation initiated by the states of Louisiana and Missouri until the January 13, 2022 Supreme Court decision was issued, which allowed it to go into effect nationwide.

CMS Rule Overview:

The CMS Rule covers all staff working at a covered facility that participates in the Medicare and Medicaid programs. This includes all current staff and new staff who provide any care, treatment, or other services for the facility and/or its patients, regardless of clinical duties or direct patient contact.

A limited exception to the CMS Rule is available for employees who work remotely 100 percent of the time, such as fully remote telehealth or payroll services. However, the Rule does apply to staff who work primarily remotely but occasionally work onsite at a healthcare facility and to employees who perform duties offsite such as home health and home infusion therapy settings. The list of healthcare facilities subject to the Rule is broad and includes hospitals, hospices, ambulatory surgical centers, home health agencies, long-term care facilities, psychiatric residential treatment facilities, and others that receive funds from the Medicare and Medicaid programs.

The following healthcare facilities are NOT subject to the CMS Rule: assisted living facilities, group homes, home and community-based services, physicians’ offices, dentist offices, and retail pharmacies.

The Rule does permit religious and medical exemptions and accommodations based on existing federal law and requires facilities to take additional precautions for exempted staff who are not fully vaccinated, including testing, physical distancing and source control measures to minimize the risk of transmission to at-risk individuals.

Although some states have enacted laws limiting employer vaccination mandates, CMS has expressly stated that the CMS Rule preempts any state laws that conflict with it.

Key Compliance Dates and Employer Actions:

CMS released updated guidance on January 14, 2022, clarifying that modified key compliance dates for CMS Rule-covered employers will apply only to the 24 states that were subject to the temporary injunction. CMS issued guidance again on January 20, 2022 with modified key compliance dates for the state of Texas, which was subject to its own temporary injunction. The Texas lawsuit was subsequently dismissed by a federal district court on January 19, 2022. The original compliance dates still apply to all other states and the District of Columbia that were not part of the injunction. Below are the revised compliance dates:

January 27, 2022, February 13, 20221 or February 22, 20222

First doses must be administered to employees not yet vaccinated (except for staff with a pending exemption request and those whose vaccination was temporarily delayed in accordance with CDC recommendations).

Vaccination policies and procedures established and enacted, including those related to:

  • exemption requests

  • additional precautionary measures for exempted employees

  • tracking, documenting and securely storing the vaccination status of each employee.

February 28, 2022, March 15, 20221 or March 21, 20222

Employees must be fully vaccinated (two weeks after receipt of last dose in a primary vaccination series) or have been granted an approved religious or medical exemption. In previous guidance, CMS stated that staff who receive the last dose by these dates will be considered to have met this requirement.

Employers covered by the CMS Rule are advised to begin or continue their good faith compliance efforts to prepare/update vaccination policies and procedures, develop/update their processes for exemption requests and ensure that their staff is fully vaccinated by February 28, March 15 or March 21, 2022 as applicable to their specific state.


Risk Strategies will continue to work diligently to provide our clients with the most up-to-date information.


1This extension date applies to the following 24 states that were subject to the temporary injunction: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming.

2This extension date applies only to the state of Texas.

The contents of this article are for general informational purposes only and Risk Strategies Company makes no representation or warranty of any kind, express or implied, regarding the accuracy or completeness of any information contained herein. Any recommendations contained herein are intended to provide insight based on currently available information for consideration and should be vetted against applicable legal and business needs before application to a specific client.