The Biden administration is confident that legal challenges to its COVID-19 vaccine mandate for healthcare workers will ultimately fail, and legal experts are largely in agreement. As a result, they are urging providers to waste no time coming into compliance with the regulation.
“There will undoubtedly be challenges in court,” Frank Morris Jr., with New York-based law firm Epstein Becker & Green, P.C., told Bloomberg Law this week. But there is not “any great likelihood that those challenges would be successful.”
Morris encouraged facilities to “move forward with becoming compliant with the CMS interim final rule” while they await more guidance. His comments came after a White House spokeswoman on Friday said the administration is “very confident” the rule can withstand any legal challenges.
“They would be in a very poor position if they don’t start to move forward with compliance activities,” he added.
As of late Monday, LeadingAge leaders were unaware of any legal challenges to the CMS rule, which an organization executive noted was done under a more “normal rule-making process” than its counterpart from the Occupational Safety and Health Administration, which was almost immediately challenged.
“There’s just a different standard applied and, of course in the healthcare setting, there is a little more of an understanding of being regulated, especially regarding health issues during the pandemic,” Corey Kallheim, vice president of legal affairs and social accountability for LeadingAge, told members during a COVID-19 webinar Monday. “The OSHA issue is broader because it expands to many, many employers … That’s why we anticipate the challenges to the OSHA rule but not necessarily the CMS rule.”
Multiple lawsuits challenging OSHA’s authority on vaccines had been filed by Monday in the U.S. Courts of Appeals for the 5th, 6th, 7th, 8th and 11th Circuits.
Judges in the 5th Circuit, covering the districts of Mississippi, Louisiana and Texas, granted a stay of enforcement and implementation of the OSHA rule. The federal government and parties challenging the rule were both expected to submit briefs to that court by Tuesday night.
“We expect more of a decision on the merits from that Circuit Court as early as sometime this week,” Kallheim said. “We’ll also see what the other Circuit Courts of Appeals decide to do and what their reasoning and analysis is. If there is a conflict then, we may even see the United States Supreme Court jump in and make a determination at some point.”
In the meantime, providers should expect enough rulings on the OSHA rule over the next several weeks to feel like they’re on a “little bit of a roller coaster.” The bottom line, however, is that non-healthcare employers must remain prepared to enact the mandate or its test-out option.
“It behooves you to actually review the requirements and get familiar with them because if this is upheld, it will be upheld with a court decision, and it will be right back into effect immediately,” Kallheim said, noting the Dec. 4 and Jan. 4 compliance dates. “Familiarize yourself and be ready to go.”