COVID-19 Vaccines: Step-by-Step Guide for Community Action
This step-by-step guide is intended to help the Community Action network be nimble with respect to their approaches to vaccines in the workplace and maintaining compliance with applicable federal mandates issued by Head Start and the Centers for Medicare & Medicaid Services (CMS). Various legal challenges to the mandates, including to the OSHA Emergency Temporary Standard and the Head Start vaccine mandate, have resulted in many CAAs no longer being subject to any federal vaccination, testing, or masking requirements. However, such CAAs may, subject to their state and local laws, voluntarily adopt their own workplace rules regarding COVID-19 vaccines, tests, and masks.
This guide helps CAAs subject to vaccine mandates as well as those voluntarily adopting a mandate think through their implementation and enforcement procedures. We describe the planning process your CAA should consider as you develop and update your COVID-19 approach. We also provide template policies and additional resources to assist your CAA in preparing for and implementing federal mandates and your own workplace rules. We will update this resource as additional guidance is issued and legal developments arise.
1. Identify if a mandate applies
Centers for Medicare & Medicaid Services (CMS) Interim Final Rule
The CMS Interim Final Rule (the “CMS rule”) applies to Medicare- and Medicaid-certified healthcare providers and suppliers that are regulated under the Medicare health and safety standards known as Conditions of Participation, Conditions for Coverage, or Requirements. Specifically, the CMS rule applies to the following:
- Ambulatory Surgical Centers;
- Psychiatric residential treatment facilities;
- Programs of All-Inclusive Care for the Elderly;
- Long Term Care (LTC) Facilities, including Skilled Nursing Facilities and Nursing Facilities, generally referred to as nursing homes;
- Intermediate Care Facilities for Individuals with Intellectual Disabilities;
- Home Health Agencies;
- Comprehensive Outpatient Rehabilitation Facilities;
- Critical Access Hospitals;
- Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services;
- Community Mental Health Centers;
- Home Infusion Therapy suppliers;
- Rural Health Clinics and Federally Qualified Health Centers; and
- End-Stage Renal Disease Facilities.
CAAs are only required to comply with the CMS mandate in relation to healthcare facilities that fall into one of the above categories. Thus, receipt of Medicare or Medicaid funds will only require compliance with the CMS rule where the funds are used in connection with the operation of one or more of the facilities described above.
Head Start Mandate
The Head Start Interim Final Rule (the “Head Start Rule”) applies to all Head Start and Early Head Start programs, including programs offered by delegate agencies and Early Head Start-Child Care Partnerships. The mandate specifically applies to:
- all staff who work with enrolled Head Start children and families in any capacity, regardless of funding source;
- Head Start contractors whose activities involve contact with or providing direct services to children and families; and
- volunteers in Head Start classrooms or working directly with children.
Currently, the Head Start Rule is blocked by preliminary injunctions in 25 states. Head Start, Early Head Start, and Early Head Start-Child Care Partnership grant recipients in the following 25 states are not required to comply with the rule pending future developments in the litigation: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.
State Law Preemption
The federal vaccine mandates expressly claim to preempt all state and local laws that restrict employers from implementing vaccine mandates or provide broader grounds for exemptions than those required under federal law.
The conflict between the federal mandates and state laws is likely to continue to result in extensive and contentious litigation. It can be difficult to predict whether courts will interpret two laws to directly conflict with one another, but in light of the tight timeline for compliance as discussed below, CAAs should be prepared to comply with the federal mandates as written.
In addition to the rules discussed above, CAAs may be subject to rules on employee vaccinations at the state or local level. To the extent that those state and local rules do not conflict with the federal guidance, CAAs should comply with them in addition to the federal mandates.
This resource is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance Center. It was created by CAPLAW in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services, Cooperative Agreement Award Number 90ET0467-03-C3. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.