On May 1, 2023, the Biden Administration announced the end of COVID-19 vaccination requirements for federal employees, contractors, CMS-certified facilities, and others, because, “we are now in a different phase of our [COVID-19] response when these measures are no longer necessary.” The federal COVID-19 Public Health Emergency ended on May 11, 2023.

On June 5, 2023, the Centers for Medicare & Medicaid Services (CMS) published a final rule in the Federal Register that withdraws its previous mandate that staff in Medicare and Medicaid participating facilities be vaccinated against COVID-19. The final rule will become effective on August 4, 2023, and CMS will not enforce the COVID-19 vaccine mandate in the interim. However, healthcare facilities are still free to enforce their own vaccination requirements, and CMS is encouraging providers to promote vaccination among healthcare staff. Indeed, the final rule includes reporting of patient and staff vaccination rates as quality metrics, and it finalized a previous Interim Final Rule that requires long-term care (LTC) facilities to educate patients and staff on COVID-19 vaccination and to offer them such vaccinations. 

These developments reflect the federal government’s shift away from emergency health measures as COVID-19 deaths have fallen 95% since January 2021 and hospitalizations have declined by nearly 91%. CMS has also issued guidance on what the expiration of the COVID-19 Public Health Emergency means for healthcare providers going forward—many regulatory requirements for LTC facilities, Community Mental Health Centers, Home Health Agencies and others, which were previously waived due to the COVID-19 Public Health Emergency, are now back in effect.

As a result of these actions, employers that operate Medicare and Medicaid participating facilities may decide to rescind mandatory COVID-19 vaccination policies for employees, allowing these companies to hire unvaccinated staff, without requiring them to have a medical or religious exemption. In making those decisions, employers should consider their staffing needs, existing employee attitudes toward their vaccination policy, and whether the communities they serve will feel safer if their vaccination policies stay in place. Many employers with mandatory COVID-19 vaccination protocols are reviewing their policies to balance the federal government’s lead and the decline in the number of cases, while still managing the fact that employees continue to be absent and subject to quarantine due to COVID-19 infections.

Ballard Spahr frequently advises employers on compliance with changing COVID-19 laws and regulations, and assists in reviewing and drafting pertinent employment policies related to workplace health and safety issues, as well as accommodating and managing employees with Covid-19 issues.