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CHA Chart Highlights Differences Between State and Federal Vaccine Mandates

For CEOs, COOs, legal counsel, government relations executives

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In response to member questions, CHA has created a side-by-side comparison of the three federal vaccine mandates and the California public health officer order requiring health care workers to be vaccinated.  

California hospitals that participate in the Medicare or Medi-Cal program must comply with the state public health officer order and the Centers for Medicare & Medicaid Services (CMS) mandate (interim final rule), barring future court action. At this time, all three federal vaccine mandates have been challenged in court, although only the OSHA mandate has been enjoined at this time.   

A California hospital that is in compliance with the state mandate is likely also in substantial compliance with the CMS rule. However, there are a few differences that California hospitals should be aware of. One difference relates to required policies — CMS requires hospitals to develop and implement the following policies and procedures by Dec. 6:  

  • A process for ensuring that all staff (except those with exemptions or whose vaccination must be temporarily delayed for medical reasons) have received a first/single vaccine dose by Dec. 6 and their second dose by Jan. 4, 2022 
  • A process for implementing additional precautions to mitigate the transmission and spread of COVID-19 for staff who are not fully vaccinated, such as staff with exemptions; these precautions will likely include testing and masking. 
  • A process for documenting the vaccination status of all staff, including staff who have had optional booster doses and staff for whom vaccination must be temporarily delayed for medical reasons 
  • A process for staff to request a medical or religious exemption 
  • A process for documenting the information provided by staff who request an exemption 
  • A process for ensuring that documentation for medical exemptions meets the rule’s requirements (more information below) 
  • Contingency plans for staff who are not fully vaccinated for COVID-19 — CMS allows workers to work after they’ve received their first dose, but state law does not. 

Another difference between the CMS and state requirements relates to medical and religious exemptions. CMS grants less flexibility to hospitals to approve exemptions than does the state public health officer order. Under the CMS rule, employers may not grant a medical or religious exemption unless legally required by federal law (the Americans with Disabilities Act, Rehabilitation Act, ACA section 1557, and Title VII of the Civil Rights Act). The medical conditions justifying exemption in the CMS rule are few and very specific, and CMS requires that the documentation for a medical exemption contain: 

  • All information specifying which COVID-19 vaccines are clinically contraindicated for the staff member and the recognized clinical reasons for the contraindications  
  • A statement by the authenticating practitioner recommending that the staff member be exempted from the vaccine mandate based on the recognized clinical contraindications 

The state public health officer order states that the medical exemption documentation retained by the hospital should not describe the employee’s underlying medical condition or disability. However, federal law supersedes state law in this regard, so hospitals must collect and retain the documentation specified in the CMS rule. A hospital with exemption documentation that does not comply with this requirement may require employees to go back to their own physician to obtain compliant documentation, or the hospital may specify a particular physician to validate medical exemptions. Some employees who received a medical exemption under the state public health officer order may not qualify under the stricter CMS standard. 

CMS has not yet established any specific information that must be included in the documentation for a religious exemption. CMS has stated that it will issue Interpretive Guidelines for surveyors to follow when assessing a hospital’s compliance with the vaccine mandate. It is possible that additional information about documentation for religious exemptions will be included. CHA will inform member hospitals when these guidelines are available.  

CHA has also compiled a document with links to the relevant orders, regulations, FAQs, and other materials related to the state and federal vaccine mandates. CHA will keep its member hospitals informed of litigation developments and any further guidance issued by state or federal regulatory agencies.