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Health Worker Vaccine Mandate Expected to Withstand Challenges

Nov. 9, 2021, 10:30 AM

The Biden administration’s mandate that health-care workers at facilities paid by Medicare and Medicaid get a Covid-19 vaccination is likely to hold up against future court challenges, putting it on firmer ground than the vaccine-or-test rule for large companies that has already been halted, legal observers said.

The two rules released Nov. 4 by the Centers for Medicare & Medicaid Services and the U.S. Labor Department’s Occupational Safety and Health Administration represent a significant flex of federal muscle, testing the liberties and limits of the agencies.

The Biden administration is using the sweeping vaccine mandates to corner the unvaccinated into getting the jab. About 17 million health-care workers fighting the pandemic from the front lines are covered by the rule, which is aimed at helping to keep staff and patients safe in an industry not immune to vaccine hesitancy.

“There will undoubtedly be challenges in court” to the CMS rule, said Frank Morris Jr., a member of Epstein Becker & Green P.C. who works with employers on Americans with Disabilities Act and labor issues. But there is not “any great likelihood that those challenges would be successful,” Morris said.

Firm Footing

The CMS rule requires medical employers to consider religious and medical exemptions and doesn’t apply to employees who work fully remotely. “These provisions eliminate two of the most serious potential bases for contesting the mandate,” said Brian Dean Abramson, who teaches vaccine law at Florida International University College of Law.

Federally administered programs are allowed to govern the terms of participation for facilities they fund—and can withhold funding for facilities that don’t meet those standards. “No one has an absolute right to participate in the government program,” and those participants “may have to dance to the music that the federal government plays,” Morris said.

If a state, for instance, decided, “We don’t want to require our doctors to wash their hands anymore,” it makes sense that the CMS could say, “We don’t have to pay for that,” said Lawrence Vernaglia, a partner at Foley & Lardner LLP. “CMS wants to pay for safe care.”

But OSHA must demonstrate that it has the authority to issue a temporary rule in light of a threat of “grave danger,” said Rodney Satterwhite, a partner at McGuireWoods LLP.

These differing regulatory schemes make the health-care worker mandate “less susceptible to an overall challenge,” and the larger employer mandate “a major hurdle,” Satterwhite said.

More than 25 states have already sued to block the OSHA rule. The CMS rule doesn’t appear to have been directly challenged yet. But it could spark lawsuits against employers from employees who claim their requests for accommodations were wrongfully denied, Satterwhite said.

Facilities that already developed their own mandates before the CMS released the rule should return to their policies to see “whether there are things that need to be tweaked or adjusted,” said Devjani Mishra, a shareholder at Littler Mendelson P.C. who leads the firm’s Covid-19 task force. Health-care facilities can play to their advantages, setting up on-site vaccination or testing in a way that employers in other industries may not be able to, Mishra said.

State Confusion

The CMS rule “pre-empts any state law to the contrary” under the “Supremacy Clause of the U.S. Constitution,” the agency said. Health-care facilities in Arkansas, Georgia, Indiana, Montana, Tennessee, and Texas, though, were all previously banned from mandating the vaccine for their workers, according to data from the National Academy for State Health Policy.

“This is going to be settled in the courts,” said Nancy Foster, vice president for quality and patient safety at the American Hospital Association.

If courts don’t accept the CMS’ argument, it could put facilities in states that ban mandates or require broader exemptions “in a very tough position,” said Lindsay Wiley, a public health law professor at American University Washington College of Law.

Hospitals in impacted states are wondering, “Now what do we do?” said Steven Michaud, president of the Maine Hospital Association. Maine previously mandated the vaccine for health-care workers without allowing for religious exemptions, and now hospitals lack guidance on how to move forward, Michaud said.

Facilities should “move forward with becoming compliant with the CMS interim final rule” while they await more guidance, Morris said. The timeline for compliance is already relatively short, and it is “far more likely” that federal law will trump state law, Morris said. Workers have to be fully vaccinated by Jan. 4, 2022, under the rule.

“They would be in a very poor position if they don’t start to move forward with compliance activities,” Morris said.

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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