Neither the CMS vaccine mandate nor the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) are applicable to assisted living facilities. OSHA specifically excluded the health care employers covered by this past summer’s ETS for Healthcare, which did cover assisted living settings. 

The CMS rule is not applicable to ALFs because the agency CMS does not have authority over this setting.

While it was expected that the OSHA vaccine mandate could apply to ALFs with more than 100 employees, the OSHA Vaccine and Testing ETS includes an exemption for entities covered by the OSHA ETS for Healthcare. ALFs are entities covered by the OSHA ETS, but not subject to the CMS rule.

According to the OSHA website, on November 12, 2021, the US Court of Appeals for the Fifth Circuit granted a motion to stay the Vaccination and Testing ETS. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.