Untangling the Web of Federal Vaccine Mandates in Light of Recent Court Rulings Halting the OSHA and CMS Regulations
As covered by our previous update, the Occupational Safety and Health Administration (OSHA) and Centers for Medicare/Medicaid Services (CMS) both in early November issued vaccine mandates requiring tens of millions of workers across numerous industries to become vaccinated, and the President further issued Executive Order 14042 requiring certain employees of covered contractors and subcontractors to become vaccinated, all before a rapidly-approaching deadline in early 2022. The chaos and confusion stemming from these new legal requirements was quelled somewhat by the U.S. Court of Appeals for the Fifth Circuit’s issuance of a stay that suspended the enforcement of the OSHA Emergency Temporary Standard (ETS) pending further developments in the litigation, in which the three-Judge panel cited “grave statutory and constitutional issues with the Mandate[.]”
The U.S. Fifth Circuit’s ruling put the OSHA ETS’s enforcement on hold, providing employers some much-desired breathing room to prepare to implement cumbersome mandatory vaccination programs, including the drafting of new policies and procedures, modifying record-retention practices, determining the types of medical records and vaccination confirmation documents necessary to show compliance, evaluating requests for exemptions from the mandate by employees based on qualifying disabilities and religious beliefs, practices or observances, and a host of other issues. However, many employers in the healthcare arena remained covered by the CMS Interim Final Rule, and government contractors remained covered by the Executive Order.
Now, another federal court has entered the fray, the U.S. District Court for the Western District of Louisiana, and has put the brakes on CMS’s vaccine mandate by issuing a nationwide injunction against its enforcement. District Judge Terry Doughty on Tuesday issued the ruling in a lawsuit brought by the Louisiana Attorney General on behalf of the State of Louisiana, along with the Attorneys General of Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, South Carolina, Utah, West Virginia, Kentucky, and Ohio, against the Secretary of the U.S. Department of Health and Human Services and the head administrator of CMS, challenging the constitutionality of the CMS Rule and alleging that the federal government had overstepped its authority in issuing the mandate.
The Judge rejected the federal agencies’ argument that the CMS Rule was validly issued under the Social Security Act as an emergency measure to protect the health and safety of individuals providing and receiving healthcare services across the country in light of the COVID-19 pandemic and the likely increase in infections in the coming winter months. The Court further held that the United States had not demonstrated “good cause” to be exempted from the statutorily required notice-and-comment procedure that normally must be performed before a new regulation such as the agencies’ mandates may be put into effect. The Judge summarized by stating “[t]here is no question that mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency[,]” though he noted that it is unclear whether even such an Act of Congress would pass constitutional muster.
Finally, the Judge issued a deathblow to the mandate by holding that the CMS Rule was “arbitrary and capricious,” which gives a federal court the power to set aside regulatory action that is not supported by well-reasoned decision-making or which is not in accordance with other laws. On this point, the Court referenced evidence that the mandate could cause large-scale layoffs, shutdowns or significant cutbacks in essential medical services provided by facilities across the country, causing a direct detriment to potentially millions of patients. The Court was also persuaded by sworn statements from physicians that “natural immunity” acquired by many healthcare workers exposed to COVID-19 in performing their duties is equivalent to or better than the immunity provided by the vaccine, and that the vaccine itself does not prevent transmission of the disease. Not mincing words, the Judge rhetorically asked “[i]f boosters are needed six months after being ‘fully vaccinated,’ then how good are the COVID-19 vaccines, and why is it necessary to mandate them?” Finding that the States bringing the lawsuit are likely to succeed on the merits of their claims, the Judge issued a nationwide injunction, citing the need to protect workers across the country, even in those states not represented in the proceeding before him.
Now the question becomes, what next? This much is known: the OSHA ETS is temporarily suspended (presumably without any geographic restriction) and the CMS Rule is enjoined nationwide, so neither of those mandates can presently be enforced against private employers who fall under their requirements. For those employers who are federal contractors, subcontractors, and employees covered under Executive Order 14042 (see our article here for more information regarding whether your business may be covered), those rules currently remain in effect in Louisiana. While the U.S. District Court for the Eastern District of Kentucky has blocked the federal government from enforcing the portion of the Executive Order that new government contracts must include clauses requiring that contractors' employees get vaccinated, that ruling applies only in the three states that brought the lawsuit (Kentucky, Ohio and Tennessee). However, there are over a dozen other lawsuits nationwide against the Executive Order, including one brought by the Attorneys General of Louisiana, Mississippi, and Indiana pending before a different Judge in the Western District of Louisiana and on which a ruling is expected within the coming weeks.
As always, BSW is here to assist you with any concerns you may have regarding workforce vaccination or to answer any other COVID-related questions affecting your business. Please reach out to any of the attorneys in our Employment or Healthcare sections and we will gladly assist you in navigating these complicated issues.