As Courts Review CMS Vaccine Mandate, Providers Should Prepare (In the Workplace 2022)

Editor’s Note: This is the latest in a series online articles this week by the labor and employment team at the law firm of Wright Lindsey Jennings of Little Rock examining key trends for employers and the workplace in 2022.

On Dec. 2, the Centers for Medicare and Medicaid Services (CMS) issued a memo suspending enforcement of its COVID-19 vaccine mandate for certain healthcare workers.

The CMS vaccine mandate went into effect on Nov. 5, and required most Medicare and Medicaid-certified providers and suppliers (covered entities) to ensure their staff become fully vaccinated against COVID-19 by Jan. 4, unless exempted as allowed by federal law. Compliance with the mandate is required to continue participating in the Medicare and Medicaid programs.

The term “staff” is broadly defined to include employees, contractors, students, trainees, volunteers and licensed practitioners who provide care, treatment or other services to the facility or its patients (regardless of clinical responsibility or patient contact). Staff also includes any such individuals who interact with other staff, patients, residents, clients or participants of the covered entity in any location, regardless of clinical responsibility or patient contact. Only those staff who work remotely 100% of the time are exempt from the vaccine mandate.

CMS determined that this broad definition of staff is necessary to protect the health and safety of Medicare and Medicaid beneficiaries as well as the health and safety of those who care for these beneficiaries. Due to this broad definition, many healthcare providers who are not directly required to comply with the vaccine mandate are being asked to comply by hospitals, home health agencies, hospices, long-term care facilities and other covered entities because they either provide services to the covered entity or are a member of the covered entity’s medical staff and therefore fall within the CMS definition of staff.

The vaccine mandate was quickly challenged. Just five days after the mandate went into effect, 10 states, including Arkansas, filed a lawsuit in federal court in Missouri challenging the mandate as overbroad and requesting an injunction to prevent CMS from imposing the mandate pending full judicial review. Soon after, an additional 14 states filed a similar challenge in federal court in Louisiana. Florida and Texas also filed separate lawsuits.

The first decision, issued on Nov. 20, by the Florida district court, denied Florida’s request for an injunction. In its opinion, the court noted that the case was unlikely to succeed because agencies that receive federal funding are required to comply with the conditions of such funding, and that there was insufficient evidence to show that irreparable injury would occur in the absence of an injunction. Florida promptly appealed this decision, which was upheld by the 11th Circuit Court of Appeals on Dec. 6.

But in Missouri, a judge on Nov. 29 granted a preliminary injunction preventing CMS from implementing or enforcing its vaccine mandate in Arkansas, Alaska, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming until the case was resolved. The following day, the Louisiana district court also granted a preliminary injunction preventing CMS from implementing or enforcing the mandate in the 40 states that were not covered by the Missouri court’s ruling, which included Florida and Texas.

Following the federal district court decisions in Missouri and Louisiana, CMS formally suspended the vaccine mandate but appealed both rulings. On Dec. 13, the 8th Circuit upheld the Missouri district court’s injunction, which applied to Arkansas. On Dec. 15, the 5th Circuit upheld the Louisiana district court’s injunction, but only with respect to the 14 states that had filed suit in Louisiana, which excluded Texas. In response to this decision, on the same day, a Texas federal district court granted a preliminary injunction preventing CMS from enforcing the vaccine mandate in Texas. As a result of these decisions, the CMS vaccine mandate is presently blocked in 25 states, including Arkansas.

In response, on Dec. 16, the Biden Administration asked the U.S. Supreme Court to overturn the preliminary injunctions and allow the vaccine mandate to take effect while the lawsuits are pending. Until a decision is issued, healthcare providers face uncertainty as to whether they should move forward with implementing a vaccine requirement for their employees, volunteers, students, contractors and non-employed medical staff.

If the CMS vaccine mandate is ultimately upheld, it will supersede any conflicting state laws. Until then, Arkansas healthcare providers that have implemented a COVID-19 vaccine mandate need to be prepared to comply with Arkansas Act 1113, which is scheduled to go into effect on Jan. 13.

Act 1113 requires Arkansas employers to include an exemption process in any COVID-19 vaccine mandate policy that allows employees to either provide the employer with a negative COVID test on a weekly basis or proof of immunity not more than once every six months.

For now, healthcare providers should continue to monitor these developments and be ready to implement any necessary policy changes once these conflicting laws and court decisions are resolved.

Jennifer Smith is a health law attorney at Wright Lindsey Jennings in Rogers. Her practice focuses on healthcare regulatory and compliance matters, including telemedicine, physician employment and practice management, concierge practice, professional licensing issues and medical staff peer review and credentialing matters.