Court Blocks Healthcare Vaccine Mandate Across the Nation – Now What?

No doubt you’ve seen a headline or two, announcing that the vaccine mandate for healthcare workers is on hold, but you may not understand the reasons for the delay or how to proceed during this waiting game.  Fortunately, our friends at Fisher & Phillips published a comprehensive article, summarized below, to guide us.

Here’s what happened:

• CMS issued a rule on November 5^th requiring providers who receive any payments from Medicare or Medicaid to implement a vaccine mandate for broadly-defined “staff” that includes employees, volunteers, students and contractors.  The mandate required these workers to receive the first dose of COVID-19 vaccine by December 6^th and be fully vaccinated by January 4, 2022.
• On November 11^th, 10 states file a complaint with a Missouri court to block the rule; the stay was granted, and applies to workers in those 10 states.
• Separately, another 14 states filed a similar action in Louisiana, and that’s what led to yesterday’s order blocking the CMS vaccine mandate for the whole country.

Here’s why this happened:

The Louisiana court identified five keys, below, that pointed to immediate and irreparable harm to the healthcare facilities and its patients, and concluded the states would “likely prevail in any litigation attacking the mandate.”

1. CMS is required to – and didn’t – provide notice prior to changing the rules.  This notice also allows a comment period for interested parties to opine. CMS argued that it had good cause to bypass the standard notice, but the court indicated that CMS took two months to prepare the interim final rule, which is even longer than the usual notice & comment period.  We take this to mean, CMS can’t claim exigency in bypassing the notice requirement while taking a long time to craft the actual guideline.
2. CMS doesn’t have the authority to mandate the vax.  The court concluded that a rule affecting 10.3 million workers should have been the purview of federal lawmakers, not “federal bureaucrats.”  Additionally, the court said it wasn’t clear if an Act of Congress would even be constitutional.
3. The mandate is contrary to law. Prior to mandating the vax, CMS didn’t follow specific requirements, such as advising state agencies or conducting regulatory analysis of its effect on small rural hospitals.
4. The rule is “arbitrary & capricious.”  The court explained that the mandate could very well harm patient well-being due to the staff shortages it would create, not to mention harm to the facilities themselves.  In addition, the court chided CMS for failing to include – or arbitrarily rejecting – alternatives to the mandate, such as C-19 testing, use of PPE, natural immunity and social distancing.
5. The mandate violates various constitutional principles.

The Louisiana court expanded the reach of the injunction to include the whole country, with the exception of the original 10 states bound by the Missouri court decision.

Now what?

Employers have been granted a temporary reprieve with no clue as to how temporary it will be.  F&P employment attorneys recommend a cautious approach and continued behind-the-scenes preparations in case the mandate is resurrected with a short compliance deadline.  These activities include educating employees on the mandate and reprieve, explaining it’s not permanent yet; drafting a written policy on vaccines and considering how you would implement it; evaluating your company’s culture and workers’ reactions to a mandate; and developing a plan to handle temporary and long-term worker losses.  Of course, it’s beneficial to also educate employees on vaccines and their effectiveness. 

Unionized workplaces and those who operate in multiple states will face additional challenges, including what rules to follow if states have laws prohibiting or mandating vaccinations.