Ten States Sue To Stop The Cms Vaccine Mandate For Healthcare Workers

Written by: Jacqueline Voronov, Esq.

And the legal challenges to President Biden’s vaccine mandate keep on coming…  

Missouri, Iowa and a coalition of eight (8) other states have filed a lawsuit against President Joe Biden and key administration officials over the CMS requirement that health care workers must be vaccinated against COVID-19 as a condition of doing business with Medicare or Medicaid. The nearly 60-page complaint, which can be found here– filed in the U.S. District Court for the Eastern District of Missouri — argues the mandate is unlawful and would hurt the 76,000 providers affected by it.

“The plaintiff states seek to end this dragooning of our states’ health care heroes,” the complaint reads. “Critically, the CMS vaccine mandate also threatens to exacerbate an alarming shortage of health care workers, particularly in rural communities, that has already reached a boiling point.”

CMS released emergency regulations related to COVID-19 vaccinations for health care workers last week. The Occupational Safety and Health Administration (OSHA) did so as well for companies that employ 100 or more workers. Unlike the proposed OSHA rule, CMS’s regulations provide no mechanism for employees to undergo testing rather than be vaccinated.  The rule makes exceptions only for specific medical or religious reasons.

The Missouri suit follows similar ones by Republican-led states challenging new Biden administration rules that will require federal contractors to ensure their workers are vaccinated and that businesses with more than 100 employees require their workers to get vaccinated or wear masks and get tested weekly for the coronavirus.

Biden’s administration contends that the federal rules supersede state policies prohibiting vaccine mandates and are essential to slowing the pandemic, which has killed more than 755,000 people in the U.S. But the New Orleans-based 5th U.S. Circuit Court of Appeals already has temporarily blocked the OSHA vaccine rule, saying it raises “grave statutory and constitutional issues.”  Unlike the challenge to the OSHA rule, the CMS challenge in Missouri was initiated in district court and any appeals from that decision will end up in the U.S. Court of Appeals for the Eighth Circuit, which is composed of judges nearly all of whom were appointed by Republican presidents.

The CMS mandate covers a broad group of Medicare- and Medicaid-certified providers and suppliers, including rural health clinics, hospitals, long-term care facilities and home health agencies.  As the payer for Medicare and Medicaid programs, the federal government already requires providers to comply with an array of quality, health and safety requirements. Under the rule, health care workers must receive their first vaccine dose by December  5 and be fully vaccinated no later than January 4.

The health care industry already faces a worker shortage in nearly all areas, likely to be exacerbated by the CMS mandate. There are critical shortages of nursing aides and nurses at nearly a quarter of all American long-term care facilities. The lawsuit estimates that if the CMS mandate is left in place, more than 200,000 healthcare workers could lose their jobs.

The lawsuit goes on to say that the mandate is “an affront to the millions of healthcare workers who risked their lives in the early days of the COVID-19 pandemic to care for strangers and friends in their communities,” and that the federal government has cast aside the health care workers who have personal reasons for not wanting the COVID-19 vaccine.

Practical Considerations

Many hospitals, long term care facilities and other CMS-participating facilities across the country have already implemented various levels of vaccine requirements, while some others have remained hesitant to require mandatory inoculation for workers.  If the IFR is invalidated or otherwise stayed prior to December 5, 2021, covered facilities that have not already adopted vaccine mandates may be allowed a testing alternative to the vaccine through their obligations under the OSHA rule (assuming, of course, that the OSHA rule survives). If the OSHA rule is upended but the CMS rule passes the legal challenge, nursing homes and other CMS-participating facilities will have no choice but to maintain or implement a strict vaccine mandate with no test-out option.

For the time being, employers (or third parties indirectly covered by the IFR) should continue planning for IFR compliance, absent further rulings from the court.  Key compliance dates are December 5 and January 4.

For more information on the vaccine requirements and the evolving litigation related to them, please contact Jacqueline Voronov at jvoronov@hallboothsmith.com or 201-221-7014 or any member of Hall Booth Smith’s Labor and Employment department.

This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Hall Booth Smith, P.C. and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.  This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.