HJNO Mar/Apr 2022

VACCINE MANDATES 20 MAR / APR 2022 I  HEALTHCARE JOURNAL OF NEW ORLEANS   The Court found that the CMS rule was justified because the federal government has never in the modern era faced an infec- tious disease of the scale of COVID-19. The Court further rationalized that many states require healthcare workers to be vaccinated against the seasonal flu, which is why CMS had never deemed it necessary to imple- ment a federal vaccine mandate. Thus, the Court held that the rule was “a straightfor- ward and predicable example of the ‘health and safety’ regulations that Congress has authorized [CMS] to impose.” In December 2021, several challenges to EO 14042 resulted in separate federal court decisions in Kentucky, Georgia, Louisiana, Missouri, and Florida granting preliminary injunctions barring enforcement of the federal contractor vaccine mandate. These rulings were largely based on the federal courts’ determinations that the Executive Branch had failed to adhere to required pro- cedures for amending federal contracting requirements and lacked the authority to impose a nationwide mandate for all gov- ernment contractors. As a result of these decisions, enforcement of the mandate is currently enjoined nationwide. CURRENT STATE OF THE FEDERAL MANDATES On January 26, 2022, in the aftermath of the Supreme Court’s order staying enforce- ment of the ETS, OSHA withdrew the ETS, effectively ending the litigation. As a practi- cal matter, the Supreme Court’s ruling and OSHA’s withdrawal of the ETS means that most large employers are relieved from this federal vaccinationmandate for the foresee- able future and, only if the ETS is ultimately upheld by the Sixth Circuit and affirmed by the Supreme Court (which is extremely unlikely and would take months to com- plete) will these employers be required to come into compliance. However, OSHA has emphasized that the ETS will continue Numerous other legal challenges filed around the country were all consolidated for review before the U.S. Court of Appeals for the Sixth Circuit to determine the fate of the ETS. On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s stay, declaring that the ETS was legally enforce- able, which generated multiple emergency appeal applications to the U.S. Supreme Court by the plaintiffs. On January 13, 2022, the Supreme Court granted emergency relief staying the ETS. In a 6-to-3 decision, the Court held the plain- tiffs had shown a likelihood of success on their claim that OSHA lacked author- ity to issue the ETS because its statutory duty is to “set workplace safety standards, not broad public health measures” and “although COVID-19 is a risk that occurs in many workplaces, it is not an occupa- tional hazard in most.”The Court, led by its conservative majority, held that because of OSHA’s overreach the implementation and enforcement of the ETS would be put “on hold” pending further review by the Sixth Circuit, and, potentially, a second appeal to the Supreme Court by whoever is on the los- ing end of that litigation. In December 2021, a Louisiana federal judge stayed the enforcement of the CMS rule in a lawsuit brought by the Louisiana Attorney General on behalf of the State of Louisiana, along with the attorneys gen- eral of Montana, Arizona, Alabama, Geor- gia, Idaho, Indiana, Mississippi, South Car- olina, Utah, West Virginia, Kentucky, and Ohio, challenging the constitutionality of the CMS rule and asserting that the federal government had overstepped its authority. Similarly, to the OSHAETS, numerous court decisions on the CMS rule from around the country were appealed to the U.S. Supreme Court, which issued a separate 5-to-4 deci- sion on January 13, 2022, lifting the lower court injunctions that had blocked the CMS rule’s enforcement in 25 states. testing and wear a face covering at work. Under the ETS, as of Jan. 10, 2022, such large employers were also required to promul- gate COVID-19 policies for their workforce, provide paid time off for receiving a vacci- nation and/or recovering from side effects, and collect information on their workforce’s vaccination status and maintain a “vaccine roster.”The OSHAETS covered somewhere in the neighborhood of 80 million workers nationwide. The same day as the OSHA ETS was issued, the U.S. Centers for Medicare and Medicaid Services issued its “Omnibus Health Care Staff Vaccination” rule (CMS rule), applying to all facilities that par- ticipate in Medicare and Medicaid. Nota- bly, while the OSHA ETS allowed covered employers to institute vaccinate-or-test options for employees, EO 14042 and the CMS rule do not contain a testing option and thus make vaccination mandatory for all covered contractors and employees who do not have a valid exemption. The CMS rule applies to a number of enumerated health- care services, support, or suppliers that are regulated under CMS standards, including hospitals, nursing homes, rehabilitation clinics, and many other facilities that receive Medicare or Medicaid funds. The CMS rule applies to all current and future employees at covered facilities, regardless of whether the employee holds a clinical or non-clini- cal position, and reaches anyone who pro- vides treatment or services to the facility under contract or other arrangements. In total, the CMS rule covers approximately 10.4 million healthcare workers at 76,000 medical facilities. IMMEDIATE LEGAL CHALLENGES On November 12, 2021, within a week after OSHA issued the ETS, the U.S. Court of Appeals for the Fifth Circuit issued an order staying (blocking) its enforcement.