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Last week, two courts issued rulings in separate lawsuits challenging federal COVID-19 vaccine mandates.
As a reminder, there are three federal vaccine mandates:
- The Centers for Medicare & Medicaid Services (CMS) mandate that applies to hospitals and other facilities participating in the Medicare or Medicaid program
- A mandate that applies to some (not all) federal contractors
- The federal OSHA mandate that applies to businesses with more than 100 employees. Unlike the other two federal mandates, this mandate permits a testing option instead of vaccination.
In addition to the federal mandates, the state of California has issued a vaccine mandate that applies to hospitals and other health care facilities. CHA has created a side-by-side comparison of the mandates, which is updated as relevant court orders are issued.
CMS mandate. In a case challenging the CMS mandate for health care workers, the U.S. Court of Appeals for the Fifth Circuit issued an order on Dec. 15 that kept a lower court injunction in place, but narrowed its applicability to the states that had filed the lawsuit (which does not include California). Previously, the injunction had applied nationwide. Although CMS can enforce the mandate in California and several other states if it chooses to, CMS has stated in QSO-22-04-ALL that it will not enforce it “while there are court-ordered injunctions in place prohibiting enforcement.” On Dec. 16, the U.S. Department of Justice (DOJ) requested the U.S. Supreme Court to hear this case. The Supreme Court gave the plaintiffs until Dec. 30 to file briefs responding to the DOJ’s request.
Federal OSHA mandate. Many lawsuits were filed against the OSHA vaccine mandate in federal courts around the country, and they were consolidated into one case before the U.S. Court of Appeals for the Sixth Circuit. That court ruled on Dec. 17 that the OSHA vaccine mandate is lawful and dissolved the injunction that had previously prevented OSHA from enforcing it. The plaintiffs in the case have stated that they will ask the U.S. Supreme Court to hear an appeal. In response to the Dec. 17 court decision, OSHA has posted the following information on its website:
To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.
Hospitals in California do not need to comply with the federal OSHA emergency temporary standard because they are instead subject to state standards that are equally as effective as this requirement.
The federal contractor mandate has been stopped nationwide for now, but litigation is ongoing. Because each mandate was issued pursuant to a different legal process, the various lawsuits have different legal arguments, as well as some similar ones. Therefore, a final ruling by the U.S. Supreme Court on one mandate may or may not be determinative in the other mandate cases. Interestingly, the U.S. Supreme Court on Dec. 13 declined to hear a case from New York, leaving in place a state vaccine mandate for health care workers that does not permit religious exemptions.
There are no lawsuits challenging the California mandate, and hospitals should currently be in full compliance.
CHA has compiled a list of useful documents on the state and federal vaccine mandates and will keep members informed of developments as they occur.