A group of states is renewing a challenge to a federal mandate requiring millions of healthcare workers across the U.S. be vaccinated against COVID-19.
The vaccine requirement for Medicare and Medicaid providers was one of several mandates President Joe Biden’s administration imposed upon private-sector employers to try to drive up vaccination rates and slow the spread of the coronavirus. Health workers in about half the states were required to have their first dose of the vaccine by Jan. 27 while the rest will have to meet deadlines in February.
Two of Biden’s other high-profile orders are on hold. While the U.S. Supreme Court allowed the mandate for health care workers, it blocked a separate rule that would have required employers with more than 100 workers to be vaccinated or tested weekly for COVID-19. A lower court also blocked a requirement for employees of federal contractors to be vaccinated.
Biden’s various vaccine orders were challenged in court by Republican-led states, conservative groups and some businesses. The lawsuits argued in part that the mandates exceeded federal executive powers and infringed on states’ rights to regulate public health matters.
Through early February, 68 percent of the U.S. population age 5 and older was fully vaccinated.
Following is a rundown of the Biden vaccine mandates that affect the private sector and the status of the legal fights over them.
HEALTH WORKER MANDATE
What it would do: Under a rule published by the Centers for Medicare & Medicaid on Nov. 5, a wide range of health care providers that receive federal Medicare or Medicaid funding are to require their workers to be vaccinated. The rule affects doctors, nurses, aides, technicians and even volunteers at hospitals, nursing homes, outpatient surgery centers, home-health providers and other medical facilities. It allows exemptions for medical and religious reasons.
The CDC says the requirement covers 10.4 million health care workers at 76,000 facilities.
Who challenged it: The rule was challenged by several separate lawsuits filed by Republican-led states, mostly in groups. The states argued there were no grounds for an emergency rule, that CMS had no clear legal authority to issue the mandate and that the rule infringed on states’ responsibilities.
Where it stands: The U.S. Supreme Court on Jan. 13 lifted injunctions that had been issued by lower courts prohibiting enforcement of the health care vaccine mandate in about half the states. That means the requirement will take effect nationwide, though in several waves.
CMS said health workers must have had their first dose of the vaccine by Jan. 27 in jurisdictions that had not challenged the mandate in court. That includes: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington and Wisconsin, along with the District of Columbia and U.S. territories. Some of those places already had imposed their own vaccine mandates for health workers.
On Feb. 4, 14 states that had previously challenged the mandate, plus Tennessee and Virginia, filed another challenge in a Louisiana court. They argue that it's unconstitutional to include some state government agencies in the requirement and that the mandate is not needed because vaccines have been less effective at stopping the spread of the omicron variant.
What’s next: CMS said the first dose of the vaccine will be required by Feb. 14 in two dozen other states whose collective lawsuits prompted the Supreme Court decision. The requirement will kick in Feb. 22 in Texas which had sued separately from the other states.
Guidance documents from CMS indicate it will initially grant leniency to health care providers who are showing progress in vaccinating their employees. But providers that don’t eventually have their full staff vaccinated or exempted ultimately could face penalties, including the loss of federal Medicare and Medicaid funding.
LARGE BUSINESS MANDATE
What it would do: Under a rule published by the U.S. Occupational Safety and Health Administration on Nov. 5, businesses with 100 or more workers were to require employees to be vaccinated. If they were not, employees were to be tested weekly and wear masks while working, with exceptions for those who work alone or mostly outdoors. The requirement would have applied to businesses with a cumulative 84 million employees, and OSHA projected it could save 6,500 lives and prevent 250,000 hospitalizations over six months.
Who challenged it: The requirement was challenged by 27 Republican-led state governments, some conservative and business groups, and some individual businesses. The states mostly filed lawsuits in groups. They argued that the rule exceeded the agency’s powers and that it was the job of states, not the federal government, to deal with public health measures.
Where it stands: The Supreme Court on Jan. 13 blocked the vaccine rule from being enforced. It said OSHA exceeded its authority granted under federal law. The agency subsequently withdrew the rule.
What’s next: Businesses do not have to require their employees to be vaccinated as a result of federal policy, though businesses are free to impose their own requirements in some states.
FEDERAL CONTRACTOR MANDATE
What would it do: Under an executive order issued by Biden on Sept. 9, contractors and subcontractors for the federal government are required to comply with workplace safety guidelines developed by a federal task force. That task force subsequently issued guidelines requiring that new, renewed or extended contracts include a clause requiring employees to be fully vaccinated. There are limited exceptions for medical or religions reasons. The requirements could apply to millions of employees.
Who challenged it: The guidelines have been challenged through more than a dozen lawsuits, including seven brought by Republican-led states or coalitions of states. The arguments are similar to those against other vaccine mandates, asserting the Biden administration exceeded the procurement rule-making powers granted by Congress, infringed on states’ responsibilities and didn’t properly gather public comment.
Where it stands: The rule is on hold. A federal judge in Georgia issued a ruling Dec. 7 prohibiting enforcement of the requirement for contractors nationally. The nationwide injunction is in addition to rulings by other courts that blocked the requirement only in particularly states that sued.
What’s next: The nationwide injunction is on appeal to the Atlanta-based 11th Circuit Court of Appeals. That court has declined a request by the federal government for expedited consideration of the case.
