Can the Federal Government Require Vaccination of Health Care Workers?
This past week the White House announced a series of new, aggressive COVID-19 policies. In addition to the new OSHA emergency standard requiring large employers to test or vaccinate their employees, the Biden Administration also announced that it would require Medicare and Medicaid service providers to mandate vaccination of their workers. This too may raise legal issues, but not necessarily the broad constitutional claims identified by some commentators. This post aims to explore some of those issues.
We do not yet have the details of the measure, but here is how the White House described the new policy:
The Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action builds on the vaccination requirement for nursing facilities recently announced by CMS, and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. These requirements will apply to approximately 50,000 providers and cover a majority of health care workers across the country. Some facilities and states have begun to adopt hospital staff or health care sector vaccination mandates. This action will create a consistent standard across the country, while giving patients assurance of the vaccination status of those delivering care.
As with the OHSA standard, the details matter, and we will know much more about the legal strengths and weaknesses once we see what CMS actually does and how it justifies its a
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