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Health Worker Vaccine Mandate Stays Intact as Pandemic Recedes

March 21, 2022, 9:35 AM

The vaccine mandate for health-care workers will likely remain firm even as other cornerstones of President Joe Biden’s pandemic response dissolve with the administration’s messaging that the U.S. is in a new phase of the pandemic.

The mandate requires health-care workers at facilities paid by Medicare and Medicaid to be fully vaccinated or they risk loss of funding. It was written at the peak of the delta variant surge. The Supreme Court ruled in favor of the Medicare agency’s mandate as the omicron variant ripped through the U.S. health-care system.

Opponents said the emergence of omicron, which causes a milder illness, and the three Covid-19 vaccines’ reduced effectiveness against it, undermine the reason for the mandate.

But “the federal government is not a particularly nimble entity. It’s not designed to turn on a dime,” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

The Biden administration is changing its messaging as the omicron surge subsides, and many people are eager to take a break from prevention strategies like masking and staying home. Although some recommendations and policies are easier to change, the health-care worker vaccine mandate will extend past the end of the public health emergency, a Centers for Medicare & Medicaid Services spokesperson told Bloomberg Law.

The vaccine mandate’s fate has been in flux since federal courts in Louisiana and Missouri agreed with Republican-led states that the CMS likely exceeded its statutory authority, pausing enforcement of the rule in November. Even though the agency’s authority to mandate a vaccine is now clear, lower courts could still disagree with the Supreme Court about the necessity of the rule in the current circumstances.

The states, in an updated complaint, “hope that these changed circumstances alter the analysis,” said Josh Blackman, a professor of law at South Texas College of Law in Houston. “It is rare that the public health criteria change so rapidly, but welcome to Covid-19.”

Legal Grounds

The CMS Covid-19 vaccine mandate is the first time the agency has imposed a federal vaccination mandate—a “significant step” that highlights the unprecedented nature of the public health crisis, Shachar said.

The Supreme Court said the CMS is likely correct that it does have the authority to regulate the conditions health-care facilities have to meet to get funding, in this case via mandatory vaccination. The agency “is spending a lot of money” in the interest of high-quality medical care, Shachar said. “If you go to the hospital and you get Covid, that’s probably not improving your health.”

Even as case numbers drop, Covid-19 transmission “will continue to be a patient safety risk for quite a long while to come and vulnerable patients and nursing home residents will still need the protection that the vaccination requirement provides,” said Lindsay Wiley, professor of law at UCLA School of Law.

Besides, the current public health emergency wasn’t a key element of the Supreme Court’s reasoning when it allowed the vaccine mandate to resume. “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,” the justices wrote in their majority opinion. “At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”

The agency is enforcing the requirement across the U.S., and deadlines for health-care workers to receive their first dose of a vaccine have already passed. Hospitals can be generous in offering religious and medical exemptions, but need to otherwise have a 100% vaccination rate to be compliant.

Enforcement could change as the public health situation improves, said Karla Kinderman, a health-care attorney who used to work at the American Medical Association. “I expect the mandate just won’t be enforced as time passes,” Kinderman said.

Vulnerabilities Persist

Senate Republicans recently voted to block the mandate, but the victory “was more symbolic than anything else” and won’t gain traction in the House or at the White House, said Sarah Coyne, a partner at Quarles & Brady LLP.

The CMS’s win in the Supreme Court was narrow: a 5-4 decision from a right-leaning court. “Legal victories have been few and far between” for Biden’s vaccine mandates, said James Hodge, director of the Center for Public Health Law and Policy at Arizona State University. The justices struck down a broader mandate for larger businesses, which was a key prong of the administration’s strategy to corner workers into getting the jab.

While a less-dire public health situation could, in theory, pull a more conservative justice over to the other side, “the court will not revisit the same case” anytime soon unless the facts significantly change, Hodge said.

In prior court opinions that ruled against the mandates, “some of the judges’ reasoning was that the pandemic is not really an emergency,” said Seema Mohapatra, visiting professor of law at SMU Dedman School of Law. “Now they can point to the fact that even the Biden administration themselves don’t see it as an emergency,” Mohapatra said.

If the administration were to formally end the public health emergency, “the legal authority for the mandate would be significantly eroded,” said Ana Santos Rutschman, assistant professor for the Center for Health Law Studies at the Saint Louis University School of Law. The justices’ decision was built around the unprecedented challenges of the public health situation, Rutschman said. “If the pandemic is declared over, I don’t see how rules designed for emergencies would stay in place.”

But the CMS said the rule isn’t tied to the public health emergency. At this point, the impact of litigation on current employees is “a little bit more moot,” since those who needed to get vaccinated likely already have, said Jessica West, senior counsel at Trenam Law.

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

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergindustry.com; Brent Bierman at bbierman@bloomberglaw.com

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