Tag Archives: Religious Exemptions

CMS Releases Interim Final Rule Requiring COVID-19 Vaccination for Employees and Suppliers

Contributed by Suzannah Wilson Overholt, November 4, 2021

Studio macro of a stethoscope and digital tablet with shallow DOF evenly matched abstract on wood table background

Today the Centers for Medicare & Medicaid Services (CMS) released its interim final rule requiring all employees and certain suppliers of most Medicare and Medicaid certified providers to be fully vaccinated against COVID-19 unless they receive an exemption due to a disability, medical condition or sincerely held religious belief (the “Rule”) (the text of the regulations starts on page 171 of the CMS publication). The Rule is effective upon official publication, which is targeted as November 5.

Covered Health Care Entities

The Rule applies to the following types of CMS regulated facilities:

  • Ambulatory Surgical Centers (ASCs)
  • Hospices
  • Psychiatric residential treatment facilities (PRTFs)
  • Programs of All-Inclusive Care for the Elderly (PACE)
  • Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children’s hospitals, transplant centers, cancer hospitals, and rehabilitation hospitals/inpatient rehabilitation facilities)
  • Long Term Care (LTC) Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs)
  • Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs-IID)
  • Home Health Agencies (HHAs)
  • Comprehensive Outpatient Rehabilitation Facilities (CORFs)
  • Critical Access Hospitals (CAHs)
  • Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services
  • Community Mental Health Centers (CMHCs) offering partial hospitalization services
  • Home Infusion Therapy (HIT) suppliers
  • Rural Health Clinics (RHCs)/Federally Qualified Health Centers (FQHCs)
  • End-Stage Renal Disease (ESRD) Facilities

The Rule does not directly apply to other health care entities not regulated by CMS. Such entities may still be subject to other State or Federal COVID-19 vaccination requirements, such as those issued by OSHA for certain employers.  Our discussion of the OSHA Rule may be found in our previous blog post.

Key Dates (assuming the Rule is published November 5)

  • December 5, 2021 (30 days from publication): Staff must have received the first dose, or only dose as applicable, of a COVID-19 vaccine, or have requested or been granted an exemption to the vaccination requirement. 
  • January 4, 2022 (60 days from publication): The primary vaccination series must be completed and staff must be fully vaccinated, except for staff granted exemptions or those staff for whom vaccination must be temporarily delayed due to clinical precautions and considerations. Staff who have completed the primary series for the vaccine by this date are considered to have met these requirements, even if they have not yet completed the 14-day waiting period required for full vaccination.

Covered Employees Vendors

The vaccine requirement applies to the following, regardless of clinical responsibility or patient contact:

  • Employees;
  • Licensed practitioners;
  • Students, trainees, and volunteers; and
  • Individuals who provide care, treatment, or other services for the facility and/or its patients, under contract or other arrangement. 

Individuals who provide services 100% remotely, e.g. fully remote telehealth or payroll services, are not subject to the vaccination requirement.  Providers and suppliers are not required to ensure the vaccination of individuals who infrequently provide ad hoc non-health care services (e.g. annual elevator inspection), or services that are performed exclusively off-site, not at or adjacent to any site of patient care (e.g. accounting services).

Definition of “Fully Vaccinated”

“Fully vaccinated” means two weeks or more has elapsed since completion of a primary vaccination series. “Completion of a primary vaccination series” means the administration of a single-dose vaccine, or the administration of all required doses of a multi-dose vaccine. COVID-19 vaccine doses from different manufacturers may be combined. Providers and suppliers must have a process for tracking and securely documenting the COVID-19 vaccination status of any staff who have obtained any booster doses as recommended by the CDC.

Unvaccinated Staff

All applicable providers and suppliers must follow nationally recognized infection prevention and control guidelines to mitigate the transmission and spread of COVID-19 and implement additional precautions for all staff who are not fully vaccinated for COVID-19. The CDC infection control guidance can be found on the CDC website.

Documentation Requirements

Providers and suppliers must track and securely document the vaccination status of each staff member. Vaccine exemption requests and outcomes must also be documented. All vaccine documentation must be kept confidential and stored separately from the personnel files. Examples of acceptable forms of proof of vaccination include:

  • CDC COVID-19 vaccination record card (or photo of the card),
  • Documentation of vaccination from a health care provider or electronic health record, or
  • State immunization record.


Providers and suppliers must establish and implement a process by which staff may request an exemption from COVID-19 vaccination requirements based on recognized medical conditions or religious beliefs. The Rule directs providers and suppliers to the CDC guidance regarding contraindications. Our previous discussion regarding medical and religious exemptions can be found in a previous blog post.

Now is the time for affected providers to implement vaccination and exemption policies. We will continue to provide updates on this important issue.

EEOC Offers Some Help in Navigating the Murky Waters for Religious Exemptions From COVID-19 Vaccines

Contributed by Suzannah Wilson Overholt, October 27, 2021

hand wears medical glove holding syringe and vial bottle with covid 19 corona virus vaccine

As many employers begin implementing COVID-19 vaccine mandates, they are receiving a large number of employee requests for exemption from the vaccine for religious reasons. Before this week there was no direct guidance from the EEOC on this point, but that changed when the EEOC added this topic to its COVID-19 guidance. The following summarizes key points from that guidance.

An employer should assume that a request for religious accommodation is based on sincerely held religious beliefs. However, the employer may ask for an explanation of how the employee’s religious belief conflicts with the COVID-19 vaccination requirement. 

An employer is not required to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief. Costs include not only monetary costs but also the burden on conducting the employer’s business, including the risk of the spread of COVID-19 to other employees or to the public. An employer should thoroughly consider all possible reasonable accommodations based on the employee’s job duties, including telework and reassignment. 

Undue hardship exists where the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Relevant considerations include whether the employee requesting a religious accommodation works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals).  An employer may also consider the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will need a particular accommodation. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship. 

If an employer grants some employees a religious accommodation, it does not have to grant the requests of all employees who seek such an accommodation. The employer may take into account the cumulative cost or burden of granting accommodations to other employees.

An employer does not have to provide the religious accommodation preferred by an employee if there are other possible accommodations that are effective in eliminating the religious conflict and do not cause an undue hardship. If there is more than one reasonable accommodation, the employer may choose which accommodation to offer. While the employer should consider the employee’s preference, it is not obligated to provide the accommodation preferred by the employee. If the employer denies the employee’s proposed accommodation, the employer should explain why that accommodation is not being granted. 

If an employer grants a religious accommodation to an employee, the employer can later reconsider it. An employer has the right to discontinue an accommodation if it is no longer utilized for religious purposes or if the accommodation subsequently poses an undue hardship due to changed circumstances. An employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it and consider whether there are alternative accommodations that would not impose an undue hardship.