By: Kimberly J. Kisner, Esq.
A federal appeals court late Wednesday, December 15, 2021, lifted a nationwide ban against the Biden administration’s COVID-19 vaccination mandate for certain health care workers. But the requirement remains blocked in 24 states that sued to stop the directive.
The New Orleans-based 5th U.S. Circuit Court of Appeals, in lifting the nationwide injunction, stated the lower district court gave “little justification” for application of an injunction nationwide to include states that did not bring suit. Nonetheless, the Appeals Court hinted that the Biden administration has not made a strong showing that it is likely to succeed on the merits of proving that its vaccine directive is lawful. (21-30734-CV0.pdf (uscourts.gov))
It was not immediately clear whether the original January 4, 2022 deadline for healthcare workers to be fully vaccinated would remain or be adjusted. CMS has not yet stated whether they will begin enforcement activities as early as next month against states not covered by yesterday’s order including Pennsylvania, New York, Illinois, Florida, Texas, and California. (See memo originally issued staying enforcement activities).
The CMS healthcare worker vaccine mandate covers as many as 17 million employees working for 76,000 providers in settings funded by the Medicaid and Medicare programs. Private pay providers and other facilities that do not participate in Medicaid and Medicare programs are not covered by this directive.
The Fifth Circuit alluded to the likelihood that the U.S. Supreme Court will ultimately have to decide whether the healthcare worker vaccine mandate is legal. “This vaccine rule is an issue of great significance currently being litigated throughout the country,” noted the Fifth Circuit Court of Appeals justices in their ruling.
The decision is another step in a complicated maze of lawsuits and appeals that will be affected by other rulings. During the legal seesaw, long-term care providers should continue their efforts to confidentially identify vaccination statuses of their employees and encourage as many employees as possible to consent to vaccination. Providers should also prepare draft policies and procedures should the federal government’s arguments prevail.
If you have questions regarding COVID-19 vaccination mandates for certain health care workers, or any other employment-related legal matter, please contact Leech Tishman’s Employment & Labor Practice Group.
Kimberly J. Kisner is a Partner with Leech Tishman, and a member of the firm’s Employment & Labor Group. Kimberly is based out of the Pittsburgh office and can be reached at 412.261.1600 or email@example.com.
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