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Health-Care Worker Vaccine Mandate: Halt by Courts Explained

Dec. 1, 2021, 8:02 PM

The Biden administration’s health-care worker vaccine mandate is temporarily blocked nationwide under two preliminary injunctions from federal judges in Republican-led states.

The mandate from the Centers for Medicare & Medicaid Services was written to crack down on unvaccinated health-care workers who the agency says are a threat to patient and staff safety.

Many individual health facilities have implemented their own vaccine mandates, and a patchwork of states have either required them or banned them—butting heads with the federal regulation that is now on pause. While the courts decide whether the CMS mandate is legal, here’s what health-care employers and workers need to know:

1. What is the mandate?

The Medicare agency published an interim final rule Nov. 4 requiring that health-care workers at facilities paid by Medicare and Medicaid be vaccinated for Covid-19. The rule covers more than 17 million health-care workers and would require employees to get their first dose by Dec. 6. The CMS published the rule without seeking comment from those affected, which the agency claims it has the authority to do given the public health emergency.

Health-care workers were the first group prioritized for vaccinations when they first became available, but the industry hasn’t been immune from the vaccine hesitancy sweeping the country. About 30% of health-care workers in over 2,000 hospitals weren’t vaccinated as of mid-September, according to a recent analysis from the Centers for Disease Control and Prevention.

The rule is one prong of a broader Biden administration push to get workers vaccinated. A similar rule for large employers, with a testing opt-out, is also on hold.

2. Why did courts halt it?

Four different lawsuits from Republican-led states asked federal courts to block the mandate. They claim the rule would exacerbate staffing shortages at hospitals still reeling from past pandemic surges and preparing for future coronavirus variants. They also argue that the vaccine mandate was an overstep of the health agency’s authority.

To win a preliminary injunction, the states needed to persuade a judge that they would face irreparable harm without one and that their arguments against the CMS would likely succeed. A federal judge in Missouri agreed that the 10 states that filed one of the suits met that criteria and halted the rule for those states. A federal judge in Louisiana agreed that 14 more states would face irreparable harm if the rule wasn’t blocked—and halted the rule for the rest of the U.S.

The two judges both said implementing a vaccine mandate was an overstep of the health agency’s authority. The CMS should’ve gotten congressional permission for the vaccine mandate and given people a chance to comment on it before it took effect, the judges said.

3. How will this impact health-care facilities?

Any health facility can still require the vaccine for its staff if state laws permit it to do so, taking into account local rules about medical and religious exemptions. An injunction could be lifted at any moment, so health and employment lawyers say it’s in an employer’s best interest to continue working to comply with the CMS rule.

If the rule stands, the penalty for noncompliance is termination from the Medicare and Medicaid programs, and lawyers said that’s not a risk a facility should take. Remaining consistent with vaccination policies will also help a facility maintain trust and authority with staff, lawyers say.

A facility can’t be penalized for refusing to implement a vaccine mandate while the injunction is in place, as long as state laws don’t require them to. Some facilities may choose to hold out due to staffing concerns.

4. What does this mean for employees?

Workers at some facilities could see a reprieve from the Dec. 6 vaccination deadline, at least for now. But others would still need to get vaccinated if their employer requires it.

Most states and facilities requiring the vaccine for health-care workers offer religious and medical exemptions. An employee can apply for a religious exemption if they qualify, but an employer has good authority to deny the request if it would pose more than a minimal burden. The CMS rule doesn’t cover employees who work entirely remotely, so some employers may be willing to shift exempt workers out of patient-facing roles. Others may claim that is an undue burden.

An employee can be fired if they don’t comply with their employer’s mandate. But amid a dire workforce shortage and see-sawing federal policy, lawyers have said that may not be a popular route for employers.

5. What happens next?

The vaccine mandate will be halted for 40 states until the Louisiana case is resolved or until a further order comes from the federal district court, the appeals court, or the U.S. Supreme Court.

The mandate will be blocked in the 10 other states while the Missouri trial is pending or until the court provides a further order.

The CMS has already appealed the Missouri case and asked for the injunction to be blocked, and the agency is likely to appeal the Louisiana decision. It’s not clear what the timeline will be for further action, but courts have recognized that both sides believe there is reason to act quickly.

Lawyers have said they think the CMS rule is on firm ground and that the agency is well within its authority to implement the mandate. But the lawsuits would all be appealed in conservative-leaning courts, and it’s difficult to predict how the Supreme Court could land on a decision that could put the CMS’s future authority to safeguard public health at risk.

To Learn More:

—From Bloomberg Law:

Vaccine Mandate for Health-Care Workers Halted Nationwide

Court Refuses to Lift Block on Health Worker Vaccine Mandate

Biden’s Vaccine Mandate for Health-Care Workers Halted by Court

Covid Vaccination Mandated for 17 Million Health-Care Workers

Opponents of Health Worker Vaccine Mandate Aim for Right Court

Health Worker Vaccine Mandate Expected to Withstand Challenges

Vaccine Mandate Halt Risks Hamstringing Future Pandemic Fights

—From Bloomberg News:

Hospital Workers Rejected at Supreme Court on Vaccine Mandate

Biden Orders Shots for Millions, Calling Unvaccinated a Threat

Can Employers Require Vaccines? Mandates Are in Limbo

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; Alexis Kramer at akramer@bloomberglaw.com

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