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 Biden announced last Thursday that his administration will enforce
the vaccine mandates starting on Jan. 4. The rules apply to
employers with at least 100 workers, federal contractors and
employees of nursing homes and other healthcare facilities that
receive reimbursements under the Medicare and Medicaid government
healthcare programs.
On Saturday, a federal appeals court suspended the new vaccine and
testing requirement for private companies while the court considers
it in more depth. It gave the Justice Department until late Monday
to respond. The portion of the mandate for the healthcare sector is
not affected by Saturday's ruling.
If the rule goes into effect, the U.S. Occupational Safety and
Health Administration (OSHA), which enforces work safety rules, is
not likely to immediately swoop in to ensure that vaccination and
testing rules are being followed, experts said.
The Centers for Medicare & Medicaid Services (CMS), the regulator
for the two federal health programs, does not typically survey
accredited healthcare providers unless there is a complaint or a
need for recertification, according to Sandy DiVarco, a partner at
the firm McDermott Will & Emery who represents healthcare providers.
Since patients and clients do not have access to staff vaccination
records, those complaints would likely come from another staff
member, DiVarco added.
"On a stakeholder call, CMS reiterated their desire to work with
providers to come into compliance and not to sort of send SWAT teams
to go out and look for problems," DiVarco said.
Healthcare facilities could lose their access to Medicare and
Medicaid funds if they fail to heed the vaccine requirements.
Medicare serves people aged 65 and older and the disabled while
Medicaid serves the poor.
"For most hospitals across the country not being able to participate
in Medicare would be crippling," said Akin Demehin, the American
Hospital Association's director of policy.
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 The healthcare workers mandate
applies to more than 10 million employees,
around 70% of whom already have been vaccinated.
It covers around 76,000 healthcare providers
that receive Medicare or Medicaid reimbursements
including hospitals, nursing homes, dialysis
centers, ambulatory surgical settings and
home-health agencies.
For the private employer rules, OSHA has an
estimated 800 safety and compliance inspectors
to cover more than 100,000 companies covered by
the mandate. The agency likely will rely on
whistleblowers concerned about unvaccinated
co-workers or that unvaccinated people are not
being tested as required, said James Hermon, a
labor and employment expert with the firm Dykema
Gossett.
 Hermon predicted that
OSHA will hit a couple of big employers with major fines soon after
the mandate takes effect.
"That will be done intentionally to put some virtual heads on
spikes," Hermon said. Each violation can bring a fine of nearly
$14,000.
The financial threat from a federal law called the False Claims Act,
which rewards whistleblowers for reports of fraud that results in
losses for the government, might ensure compliance with the vaccine
rules better than OSHA's penalties, according to one expert.
"We're interested in these cases and we've been looking at them,"
said Reuben Guttman, a whistleblower lawyer with the firm Guttman,
Buschner & Brooks, who said he has been talking to unions. "The idea
of using the False Claims Act to enforce health and safety standards
is not novel."
(Reporting by Diane Bartz, Ahmed Aboulenein and Tom Hals; Editing by
Will Dunham)
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