Following one federal court’s stay limited only to certain states (as discussed in our November 2021 E-Update), another federal court in Louisiana has now granted a nationwide preliminary injunction against the Center for Medicare and Medicaid Services’ (CMS) Interim Final Rule containing a vaccine mandate issued on November 5, 2021 (as discussed in our November 8, 2021 E-lert). This mandate requires workers of most federally-funded healthcare entities to receive their first shot by December 6, 2021 and their second by January 4, 2022. The injunction states explicitly that it “immediately enjoins and restrains the Government…from implementing the mandate.”

The federal court found that the 14 plaintiff States had a substantial likelihood of success on the merits of their challenge to the CMS rule, including:

  • CMS did not go through the notice and comment process for the Rule, and the mandate does not meet the “good cause” exception for bypassing notice and comment. The court noted that it took CMS two months to prepare the Rule, which is longer than it would have taken to simply comply with the 30-day notice and comment period.
  • CMS, an executive agency, exceeded its authority. The court found that CMS is seeking to use a general authority statute to mandate COVID-19 vaccines for over 10 million healthcare workers. The court further reasoned that the “major questions doctrine” requires that Congress speak clearly if it wishes to assign to an agency decisions of “vast economic and political significance,” and the court found this to be such an issue.
  • The court agreed that the mandate is contrary to several provisions of CMS’s delegating statute, the Social Security Act. First, CMS failed to consult with state agencies relating to conditions of participation (in Medicare/Medicaid) before issuing the Rule, a fact acknowledged by CMS when it stated it would meet with the agencies following issuance of the Rule. Second, the delegating statute prohibits the Government from supervising or controlling the “tenure or compensation of any employee or institution” – but the mandate does effectively exercise such control over employees’ tenure by requiring vaccination as a condition of continued employment. Finally, CMS did not comply with the statute’s provision to perform a regulatory impact analysis where a rule or regulation will have a significant impact on the operations of a substantial number of rural hospitals, as this mandate would.
  • The mandate is arbitrary and capricious. The court (citing a Supreme Court case argued by our managing partner, Stephen Shawe) reasoned that the Social Security Act’s purpose is to aid healthcare patients, but the mandate will have the opposite effect because healthcare institutions will lose employees, which will negatively impact patient care. Additionally, CMS “arbitrarily” rejected “obvious alternatives” such as weekly testing, masking, and social distancing, among others. The mandate’s scope is also arbitrary and capricious because it would, for example, require employees at psychiatric residential treatment facilities for individuals under 21, which is contrary to CMS’s stated interest in protecting elderly and infirm patients from COVID-19. The court likened this to “one-size-fits-all sledgehammer” phrasing of the U.S. Court of Appeals for the Fifth Circuit in its stay of OSHA’s vax-or-test Emergency Temporary Standard applicable to employers with 100+ employees(discussed in our November 13, 2021 E-lert).
  • The States have a likelihood of success on other constitutional issues, including violation of the States’ police powers, the anti-commandeering and non-delegation doctrines, and the spending clause.

The court further found that the States would suffer irreparable injury by not being able to enforce their laws that have been preempted by the CMS mandate, by incurring increased costs of training and enforcing the mandate, and by having their police power encroached upon. He added that States’ citizens will have burdens on their liberties by having to choose between vaccination or employment.

Finally, the court found that the balance of equities and the public interest favors the issuance of preliminary injunction. According to the court, the public interest is served primarily by maintaining the liberty of those who do not wish to take the vaccine, and that interest outweighs the Government’s interests.

At this time, covered healthcare entities need not comply with the CMS vaccine mandate. This ruling will undoubtedly be appealed to the Fifth Circuit (which is the same court that issued the initial stay of the OSHA vax-or-test ETS). Following that decision, the losing party will likely appeal to the U.S. Supreme Court. It is not possible to predict what these courts will do, and thus employers should not assume that the Rule will never take effect.

In our occasional series of outrageous workplace conduct, the marked increase in remote work during the pandemic has created interesting opportunities for employees to engage in some poorly-considered multi-tasking. One that caught some media attention recently involved a Maryland state legislator who attended several legislative voting sessions remotely (that’s fine – everyone did), from an operating room (um… ok? Not really…), during an actual operation (yikes!), in which she was actually performing major surgery! (You can insert your own reaction here. Mine was NSFW). Continue Reading Extraordinary Workplace Misconduct: Multitasking … While Performing Surgery

On November 12, 2021, a three-judge panel of the Fifth Circuit extended the temporary stay it had previously placed on the OSHA vax-or-test Emergency Temporary Standard, pending further judicial review of a request (one of many) to permanently enjoin OSHA from enforcing the ETS.  Describing the ETS as a scheme under which employers would be “deputized to participate in OSHA’s regulatory scheme…by forcing unwilling employees to take their shots, take their tests, or hit the road[,]” the Court described a litany of statutory defects with the ETS and questioned its constitutionality.

While the details of the opinion make for interesting reading and provide a potential roadmap for a permanent injunction of the ETS, the question for employers remains the same: Should we still prepare for the ETS to be implemented?  The answer to that question is the same as it was yesterday (and as we further explained in our November 9, 2021 blog post): likely so.  Although the ETS is temporarily stayed, the temporary stay is precarious. Continue Reading Fifth Circuit’s Stay of OSHA’s Vax-or-Test ETS Remains in Place – For Now

Is it in effect or not? Do employers have to comply or not? Yes, everyone is confused. So here’s a quick overview of the very messy situation.

As you all undoubtedly know by now, on November 4, 2021, the Occupational Safety and Health Administration issued the promised/threatened Emergency Temporary Standard compelling employers with 100+ employees to require employees to be either (1) vaccinated or (2) subject to weekly testing and face covering mandates. (We wrote about the ETS in detail here).  The ETS took effect on November 5, although it set a December 6, 2021 compliance deadline for everything but the testing requirement, which has a January 4, 2022 deadline. Continue Reading Wait – What Is Going On With the Vax-or-Test ETS?!!

On November 5, 2021, on the same day that the Occupational Health and Safety Administration issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (the “ETS”), the Centers for Medicare and Medicaid Services (“CMS”) released its Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (the “CMS Vaccination Rule” or the “Rule”).  The CMS Vaccination Rule requires certain healthcare providers to mandate vaccination against COVID-19 for all applicable staff.  The Rule, which permits medical and religious exemptions only as required by law, does not require testing of unvaccinated staff. Continue Reading CMS Issues COVID-19 Rule Requiring Vaccination of Healthcare Staff

The federal Occupational Safety and Health Administration has now issued the Emergency Temporary Standard (ETS) implementing President Biden’s September 9, 2021 COVID-19 Action Plan that requires employers with 100+ employees (1) to mandate vaccinations or weekly testing/face coverings for their workforce and (2) to provide paid time off to get vaccinated and recover from any adverse effects. Although the ETS is effective upon publication in the Federal Register on November 5, 2021, employers will be given until December 5, 2021 to come into compliance with everything but the testing requirement, which has a compliance date of January 4, 2022. The ETS will likely be in effect for six months. Continue Reading OSHA’s Vax-or-Test ETS: What Employers Need to Know

The White House and the Task Force have softened the December 8, 2021 vaccination compliance deadline for federal contractors and subcontractors. (Big sigh of relief). And provided a little more guidance on employees with exemptions at federal worksites. Continue Reading Hey Federal Contractors – There’s Flexibility on that Vaccination Deadline (And Some More Info About Exemptions)

On October 25, 2021, the Equal Employment Opportunity Commission updated its guidance document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to address religious objections to COVID-19 vaccine mandates. In a new section to the guidance, the EEOC draws upon previously-existing guidance for religious exemptions generally. While there are no real surprises, the collection of information in the guidance document is helpful. Continue Reading EEOC Issues Guidance On Religious Exemptions to COVID-19 Vaccine Requirements

Throughout the past decade, there have been efforts across the nation, at both the state and federal level, to ban the display of Confederate flags, a symbol associated with promoting hate, specifically racism.  In fact, some states have adopted laws that prohibit public displays of the Confederate flag, while other states, including Maryland, have phased out license plates that display the Confederate flag.  Private company giants,  such as Amazon, Walmart and NASCAR, have also banned the display of the Confederate flag.

Continue Reading Employers – Do Not Ignore Confederate Flag Sightings in the Workplace!

Last week the federal Departments of Labor, Health and Human Services, and the Treasury issued joint FAQs that address questions regarding COVID-19 vaccinations and group health plans.  The FAQs are particularly relevant to those employers considering whether to provide incentives or impose surcharges under their group health plans to encourage employees to become vaccinated.  Here’s what employers need to know:

Continue Reading New Federal Agency Guidance on Vaccine Incentives and Surcharges: What Employers Should Know