3 Federal Vaccination Mandates – Which One Applies to YOUR Business?

by Lana L. Rupprecht, Esq. - AVP Product Compliance

& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,

November 15, 2021


By now, you and most employers have heard about OSHA’s Vaccination and Testing Emergency Temporary Standard (“ETS”) which requires private employers with 100 employees or more to implement employee vaccination or weekly testing requirements by January 4, 2022.  Our updates on this can be found here and here. The applicable ETS is here.

BUT not all private employers, even those with 100 employees or more, are subject to the OSHA ETS. Instead, they may be subject to the Interim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers or Executive Order (“EO”) 14042 applicable to federal contractors or subcontractors. If a workplace is already covered by EO 14042 or the IFR, the OSHA ETS will not apply.

Even though the ETS, EO, and IFR all contain vaccination mandates, each have important differences and specific requirements. But, the vaccination deadline for all three is January 4, 2022.


We previously reported here that on November 6, the 5th Circuit Court of Appeals issued a temporary stay of the OSHA ETS.  As we were writing this blog, on November 12, the 5th Circuit issued another order continuing the temporary stay of the OSHA ETS pending further judicial review.  (No rest for the weary! ) The opinion can be found here.  Also, check out the links below for additional information on the stay and the Court’s opinion.

This stay will not impact the vaccination mandates contained in the EO and IFR.  And as we previously advised, employers subject to the ETS should continue to plan for compliance as the stay is temporary.

Out of the three mandates, only the OSHA ETS permits regular testing instead of a mandatory vaccination policy. The OSHA ETS clearly permits employees to receive reasonable time, including up to four hours of paid time to receive each vaccination dose and reasonable time and paid sick leave to recover from vaccination side effects.

OSHA ETS also provides that employers who do not comply with the vaccine or paid time off requirements may face fines of up to $14,000 per violation, which is not contained in the IFR or EO.

The OSHA ETS specifically provides that it will not apply to workplaces already covered by the IFR or EO 14042, so read on!

CMS Interim Final Rule

What is it?

On November 4, 2021, CMS issued the IFR requiring health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated by Jan. 4, 2022.  For more information see: Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies | The White House.

As noted above, the IFR does not provide a testing alternative for unvaccinated staff.

What Entities are Subject to it?

  • Here is a list of the facilities subject to the IFR:

    ● Ambulatory Surgical Centers (ASCs) ● Hospices ● Psychiatric residential treatment facilities ● Programs of All-Inclusive Care for the Elderly (PACE) ● Hospitals ● Long Term Care Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), 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 (HIT) suppliers ● Rural Health Clinics Federally Qualified Health Centers ● End-Stage Renal Disease (ESRD) Facilities

  • The IFR does not apply to religious nonmedical healthcare institutions, organ procurement organizations portable x-ray supplies, assisted living facilities, physician’s offices, group homes or home- and community-based services.

Who Must be Vaccinated?

All healthcare employees working at one of the covered facilities described above-- regardless of whether they work in a clinical or non-clinical position.  The IFR doesn’t just apply to employees but also students, trainees, contractors, and  volunteers and any other “staff” with direct or indirect patient contact.   

Are there Exclusions?

The IFR excludes workers who exclusively perform telehealth or support services outside the facility or who have no in person contact with patients or other staff.

Are there Exemptions?

The IFR permits exemptions based upon a  disability, medical condition, or sincerely held religious belief but in doing so, covered entities must ensure they minimize the risk of transmission of COVID19 to at-risk individuals, “in keeping with their obligation to protect the health and safety of patients.”    

The IFR also requires that an independent licensed practitioner acting within the scope of his or her practice, sign and date medical exemptions and provides,

Such documentation must contain all information specifying which of the authorized COVID-19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications; and a statement by the authenticating practitioner recommending that the staff member be exempted from the facility’s COVID-19 vaccination requirements based on the recognized clinical contraindications.

Are there Tracking Requirements?

The IFR requires that providers and suppliers create a process to collect, evaluate, and  track exemption requests including keeping secure documentation on the request, the decision, and any resulting accommodations.

Are there penalties for noncompliance?

The IFR states that non-compliance may result in civil money penalties, denial of payment for new admissions, or termination of the Medicare/Medicaid provider agreement.  It does not provide a specific penalty amount.

EO 14042

What is it?

On September 9, 2021, the White House issued EO 14042, and on September 24, 2021, a corresponding Guidance requiring employees of certain federal contractors and subcontractors to be fully vaccinated.  Testing is not available as an alternative. The EO also contains masking and physical distancing requirements and a designated person to coordinate COVID-19 workplace safety.

Initially, the EO required employees to be fully vaccinated by December 8, 2021, but on November 4th, the White House announced a January 4, 2022 deadline.

What Contractors Are Covered?

We hope you already know if your company is a covered federal contractor but here’s the rundown.  The covered contracts are:  (1) for services, construction, or a leasehold interest in real property; (2) for services covered by the Service Contract Act; (3) for concessions under the Service Contract Act; or (4) in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

The EO generally applies to federal prime contractors and subcontractors, even if they are small businesses, as follows:

  • new contracts to provide services to the federal government on or after November 14, 2021;
  • extensions/renewals after October 15, 2021, of existing contracts for services to the federal government; or
  • when elected in contracts agreed to between October 15-November 13, 2021.

Who Must be Vaccinated?

Any full-time or part-time employees working in connection with a covered contract, or at a covered contractor workplace. In other words, virtually all employees working for a covered federal contractor or subcontractor.

Are there Exclusions?

The EO does not provide an exception to remote workers on the vaccination requirement.

The EO provides a limited vaccination exception for employees beginning work on a “urgent, mission-critical need.”  In such situations, the unvaccinated employee must become fully vaccinated within 60 days after beginning the work and the employer must comply with masking and physical distancing requirements.

Are there Exemptions?

Like the ETS and IFR, the EO permits disability, medical, or religious exemptions as permitted under applicable law.

Are there penalties for noncompliance?

The Executive Order and Guidance do not address penalties for employer noncompliance.

Additional Resources

BREAKING NEWS: 5th Circuit issues new order continuing its stay of the OSHA vaccine-or-test ETS (ohioemployerlawblog.com)

Fifth Circuit Stays OSHA ETS (natlawreview.com)

Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies | The White House

CMS Omnibus Staff Vax Requirements - External FAQ (508 Compliant)

Biden-Harris Administration Issues Emergency Regulation Requiring COVID-19 Vaccination for Health Care Workers | CMS

Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors | The White House

New Guidance on COVID-19 Workplace Safety for Federal Contractors | The White House

Guidance for Federal Contractors and Subcontractors (saferfederalworkforce.gov)

COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov)

Federal Contractors | Safer Federal Workforce


Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at [email protected].