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April 22, 2022

COVID-19 Vaccination Mandates: How They Apply to Physicians

Ayesha Mehdi, Esq.

The ongoing public debate over federal and state mandates for vaccination against COVID-19 has reached all corners of the economy and society. Among the stakeholders, physicians are uniquely positioned. First, they may be subject to COVID-19 vaccination mandates directly as a class of healthcare workers. Second, they may be subject to COVID-19 vaccination mandates as employers of other clinical and non-clinical staff. And third, they may be subject to COVID-19 vaccination mandates as gatekeepers for other individuals seeking a physician’s certification for a vaccination exemption. Physicians should be aware of these different applications – as healthcare workers, as employers, and as exemption gatekeepers – as COVID-19 vaccination mandates continue to evolve.  

Physicians as Healthcare Workers

Public health officials have identified physicians and other healthcare workers as a compelling group to legally require COVID-19 vaccination, given their exposure to the virus while on the frontlines responding to the pandemic.

At the federal level, the Centers for Medicare & Medicaid Services (CMS) issued a COVID-19 vaccination mandate in the form of an interim final rule published on November 5, 2021 (the “CMS Vaccination Mandate”). The CMS Vaccination Mandate was the target of immediate legal challenges, which culminated with the U.S. Supreme Court on January 13, 2022 ruling in Biden v. Missouri that the mandate was a valid exercise of CMS’ regulatory authority to revise the conditions of participation, conditions for coverage, and requirements for participation in the Medicare and Medicaid programs. As a result of the Court’s decision, most Medicare- and Medicaid-certified providers and suppliers must now proceed to develop and implement policies and procedures under which all staff are vaccinated for COVID–19.

The “staff” to whom these policies and procedures must apply include those who directly provide any care, treatment, or other services for the facility and/or its patients, including physicians and other “licensed practitioners.” Thus, if a physician practices at one of the 21 types of providers and suppliers to which the mandate applies – which range from hospitals to hospices and rural health clinics to long-term care facilities – the physician must receive a COVID-19 vaccine. By the same token, a physician who does not work at one of the applicable providers or suppliers need not get vaccinated. As CMS recognized, the mandate “does not directly apply to other health care entities, such as physician offices, that are not regulated by CMS.”

Yet, as CMS also acknowledged, “entities not covered by this rule may still be subject to other State or Federal COVID–19 vaccination requirements . . . .” These other requirements may include state vaccination mandates that apply to healthcare workers, including physicians. Like the CMS Vaccination Mandate, state vaccination mandates may be limited to workers at certain healthcare facilities. Accordingly, the scope of a state vaccination mandate may reach some physicians but not others. 

Physicians as Employers

In addition to COVID-19 vaccination mandates for healthcare workers, another iteration of vaccination mandates may apply to physicians: COVID-19 vaccination requirements applicable to employers. Like healthcare worker vaccination mandates, employer vaccination mandates have been promulgated at both the federal and state levels. This latter type of mandate potentially may apply to physician practices as businesses that employ personnel who must receive a COVID-19 vaccine.

The focal point of the employer vaccination mandates has been the federal Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) published via interim final rule on November 5, 2021 (the “General ETS”). Under the General ETS, OSHA required employers with a total of 100 or more employees to have a policy mandating COVID-19 vaccination for all employees, with certain exceptions. Alternatively, OSHA permitted an employer to accept proof of regular COVID-19 testing from unvaccinated employees who would have to wear a face covering meeting specified requirements. Ultimately, however, employers were spared from having to make the vaccination-or-testing choice because the U.S. Supreme Court stayed enforcement of the General ETS on January 13, 2022. In contrast to its holding in the companion case regarding the CMS Vaccination Mandate, the Court concluded in National Federation of Independent Business (NFIB) v. Department of Labor that OSHA “lacked authority to impose the mandate” in the General ETS. OSHA later withdrew the General ETS on January 26, 2022.

Notably, the Court’s ruling in NFIB did not have any effect on the enforcement of another federal COVID-19 employer regulation: OSHA’s so-called “Healthcare ETS.” OSHA published the Healthcare ETS as an interim final rule on June 21, 2021 to specifically protect “healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present.” To this end, the Healthcare ETS enumerated various measures that applicable employers had to implement to reduce transmission of COVID-19 in healthcare workplaces, including “support” for COVID–19 vaccination for employees through reasonable time off and paid leave protections. Employers subject to the Healthcare ETS were expressly exempt from the General ETS that the Court stayed in NFIB.

Had the Healthcare ETS continued in effect, it would have impacted many physician practices, given that it applied broadly to “all settings where any employee provided healthcare services or healthcare support services.” But, on December 27, 2021, OSHA withdrew the Healthcare ETS. It did so not because of the outcome of a legal challenge, as it did with its withdrawal of the General ETS after NFIB,  but because the agency needed more time to “issue a final standard that will protect healthcare workers from COVID-19 hazards . . . .” OSHA strongly suggested that additional rulemaking is forthcoming, stressing that “the danger faced by healthcare workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them.”

While it was in effect, the Healthcare ETS did not include mandatory vaccination on its list of COVID-19 mitigation measures. Thus, the Healthcare ETS was never a vaccination “mandate” per se. However, the rule did impose certain requirements that turned on an employee’s vaccination status. For example, the Healthcare ETS created an exception to its requirements for personal protective equipment (PPE), physical distancing, and physical barriers for vaccinated employees in “well-defined areas” where there is “no reasonable expectation that any person with suspected or confirmed COVID-19 will be present . . . .”  Similarly, the Healthcare ETS included an exception to its requirement that employers remove employees from the workplace in instances of close contact exposure for asymptomatic employees who are vaccinated.

It remains to be seen if any future healthcare-focused regulation from OSHA will take the same form as the Healthcare ETS. It is at least possible that OSHA could pursue a more stringent approach and adopt a COVID-19 vaccination mandate in the healthcare sector, potentially reaching those healthcare employers not subject to the CMS Vaccination Mandate – a possibility the NFIB decision leaves open. Physicians should continue to monitor these regulatory developments and assess their impact from an employer standpoint.

Meanwhile, physicians should also be aware of state vaccination-related requirements that potentially may apply to them as employers. These requirements could include COVID-19 mitigation measures enforced by state OSHA agencies in those states that have their own occupational safety and health plans approved by federal OSHA. In some states, moreover, physicians may have to contend with anti-mandates – that is, bans or restrictions on employers mandating that their employees receive a COVID-19 vaccine. Depending on its particulars, a state anti-mandate could create a conflict – which might be resolved only through litigation – with the requirements of the CMS Vaccination Mandate and future rulemaking by federal OSHA.

Physicians as Exemption Gatekeepers

Finally, COVID-19 vaccination mandates may apply to physicians in an indirect, yet still significant, manner: as the gatekeepers charged with determining whether other individuals qualify for a medical exemption to an otherwise applicable vaccination mandate.

Medical exemptions have been a common feature in many of the federal and state COVID-19 vaccination mandates to date. For example, the CMS Vaccination Mandate includes a medical exemption for individuals who obtain “documentation confirming recognized clinical contraindications to COVID-19 vaccines” that is signed by a “licensed practitioner,” such as a physician, “who is not the individual requesting the exemption, and who is acting within their respective scope of practice as defined by, and in accordance with, all applicable State and local laws.” Similar medical exemptions are common in state-imposed healthcare worker vaccination mandates. For its part, OSHA’s General ETS included an exemption to be included in an employer’s mandatory vaccination policy for employees “[f]or whom a vaccine is medically contraindicated.” Even many state employer vaccination anti-mandates include a medical exemption component, insofar as they restrict an employer from mandating COVID-19 vaccination for employees who qualify for a medical exemption.

For physicians reviewing COVID-19 vaccination medical exemption requests, the role as gatekeeper comes with various responsibilities. First – and most fundamentally – physicians must be competent to understand the clinical factors that indicate risk for a complication resulting from COVID-19 vaccination, and the likelihood of such risk based on an individual’s state of health. 

As more COVID-19 vaccines obtain formal approved status with the U.S. Food and Drug Administration and more information becomes known about COVID-19 vaccines, physicians should stay informed of emerging scientific literature regarding the clinical risks and benefits of vaccination for the patient populations whom they treat.

Second, physicians should familiarize themselves with the compliance obligations associated with granting or denying a medical exemption. These obligations will depend on the applicable mandate for which an individual is seeking an exemption and may include specific documentation and record-keeping requirements. Physicians should also be cognizant of privacy-related considerations in disclosing an individual’s health information to an employer or other third party.

Finally, physicians should be on guard for the potential for misuse of the exemption process. Some individuals may use a medical exemption request as a pretext for obtaining an exemption for non-medical reasons. In these cases, physicians should be prepared to deny the exemption request if the medical justification is lacking.

Ultimately, as with any medical services they perform, physicians must remember while conducting a COVID-19 medical exemption review that it is their license on the line. Recent guidance by the Medical Board of California offers a cautionary reminder: “[A] physician who grants a mask or other exemption without conducting an appropriate prior exam and without a finding of a legitimate medical reason supporting such an exemption within the standard of care may be subjecting their license to disciplinary action.”

Takeaways for Physicians

COVID-19 vaccination mandates comprise a patchwork of continually developing federal, state, and private-sector requirements, some of which have prompted lawsuits, including the recent Supreme Court cases, challenging the validity of such mandates. Physicians should be mindful of how these mandates – and even anti-mandates – may apply distinctly to them as healthcare workers, employers, and exemption gatekeepers. The extent to which any mandate will apply, if at all, to a physician will turn on myriad factors, including the state where the physician practices, the physician’s specialty, the clinical setting of the physician’s practice, and the size and structure of the physician’s practice as a business and employer. Physicians and their legal counsel should evaluate these considerations and determine how their practices may be impacted by one or more COVID-19 vaccination mandates.

    Ayesha Mehdi

    Spencer Fane LLP, Las Vegas, NV

    Ayesha Mehdi is a partner at Spencer Fane, LLP's Las Vegas office. She works closely with physicians and other healthcare professionals, along with various healthcare businesses, in a wide range of corporate, transactional, regulatory, and licensure matters. She may be reached at [email protected].

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