COVID-19 Vaccine Mandate Litigation
From our friends at NACHC
On November 29, 2021, the Eastern District Court of Missouri issued a preliminary injunction against the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule. As a result, CMS facilities in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming are required to immediately cease all implementation and enforcement of the Interim Final Rule (IFR) until further order from the Court. As of now, this preliminary injunction only applies to the 10 states included in the lawsuit. We expect the government to appeal the preliminary injunction and will continue to monitor all relevant litigation. Currently, there is another lawsuit in the Western District Court of Louisiana with the Attorney Generals of Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Louisiana, Mississippi, Oklahoma, South Carolina, Utah and West Virginia.
Below are key takeaways from the lawsuit:
- IFR has vast economic and political significance that requires a clear authorization from Congress to invoke such a broad mandate.
- CMS rationale to skip the notice and comment process based on urgency was contradicted by the agency’s 10 month delay to invoke a vaccine mandate since COVID-19 vaccines have been available and the 2 month delay to issue the IFR.
- Skipping the notice and comment process is exacerbating the underlying vaccine hesitancy problem, and that is why the agency should have followed the procedural safeguards to allow the field to weigh in. The agency failed to consider the interests of all parties involved, including individuals who have opposing viewpoints.
- CMS relied heavily on data from Long Term Care facilities and has insufficient evidence on the impact of COVID-19 vaccinations on other CMS facilities.
- The vaccine mandate improperly rejected alternatives like testing and natural immunity when drafting the IFR.
- The vaccine mandate is too broad as it applies to 3rd party vendors like construction workers.
- The 10 states will face irreparable harm to their health care workforce, especially in rural areas.
- “The public has an interest in stopping the spread of COVID. No one disputes that. But the Court concludes that the public would suffer little, if any, harm from maintaining the “status quo” through the litigation of this case.”
Guidance for Health Centers in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming moving forward:
- We encourage health centers to continue actively working towards compliance, if state law permits the health center to implement their own vaccine mandate.
- Health centers can “strongly encourage” staff to get the COVID-19 vaccine.
- Health centers should refrain from placing staff on administrative leave or terminating employment while there is a preliminary injunction against the CMS IFR.
- Health centers should continue to develop the required policies and procedures. If the preliminary injunction is overturned, there is no guarantee CMS will provide compliance extensions for facilities in the 10 states.
- Health centers can continue to process staff religious and medical exemptions.
- Please review all relevant state legislation to understand the legality of vaccine mandates in your state.
As this is an evolving situation, please let me know if you have any questions and I will continue to keep you updated.
December 1, 2021 : Nationwide halt to CMS’ COVID-19 vaccine requirements for health care employers
On Monday, a Missouri district judge blocked the rule from going into effect in 10 states; yesterday afternoon, a Louisiana judge blocked it in the remaining states.
Note that these injunctions are temporary, and could be overturned upon review by higher court. The Louisiana judge stated “This matter will ultimately be decided by a higher court than this one. However, it is important to preserve the status quo in this case. The liberty interests of the unvaccinated requires nothing less.” The Federal government has already appealed the first injunction (from Missouri), arguing that the mandate should stay in place until a higher court hears the case.
In terms of impact on CHCs, these court decision means that the Phase One deadlines will not go into effect next Monday December 6. These deadlines required all CHCs to ensure that all staff has:
- received their first dose of the Pfizer or Moderna vaccine OR
- received their only dose of the J&J vaccine OR
- requested a medical or religious exemption temporary delay for medical reasons.
- They had developed and implemented appropriate policies and procedures to comply with the vaccine mandate.
In the event that the CMS rules are eventually reinstated, it is expected that the Phase Two deadline – currently set for January 4, 2022 – would likely be extended, to provide for at least 30 days between them.
The Federal Vaccine Mandate Toolkit has been updated to reflect these developments.