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12.02.21   |   COVID-19, Insights

Vaccine Mandate for Health Care Facilities Placed on Hold

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A nationwide vaccine mandate imposed upon most hospitals and medical facilities in the United States was halted, at least temporarily, by a federal judge in Louisiana on November 30, 2021. U.S. District Judge Terry A. Doughty found that the vaccine mandate arose from an inappropriate use of executive authority and violated the process necessary to enact such a measure.

The 34-page ruling comes as approximately 2.4 million unvaccinated healthcare workers in the United States are facing the possibility of losing employment unless they receive their first vaccination by December 6 or are seeking an exemption, based upon medical or religious grounds, from the vaccine requirement by that date.

The ruling comes on the heels of a similar injunction issued in federal courts that at least temporarily suspend the federal government’s plans to require vaccinations or weekly testing in private sector workplaces with 100 or more employees.

The Court’s written opinion criticized the federal Centers for Medicare and Medicaid Services (“CMS”) imposition of the vaccine mandate rule without formal notice and opportunity for public comment.  It noted that federal law allows immediate enactment of new rules only when “good cause” exists for an accelerated process. Good cause did not exist in this case, according to the Court, particularly because “it took the Centers for Medicare and Medicaid Services eight weeks between announcing it would impose the rule and publishing the rule. . . . It took CMS longer to prepare the interim final rule without notice than it would have taken to comply with the notice and comment requirement.”

The Court also held that the mandate was not within the authority of the Executive Branch’s powers. Executive Branch agencies are generally empowered to make rules to carry out laws passed by Congress and are given great deference in doing so. However, the Court found no expression of Congressional intent to confer authority upon the Executive Branch to impose a vaccine mandate.

The Court also found the Government’s reasoning not to be compelling. It noted that many healthcare workers appear poised to quit their jobs rather than take the vaccine, which would not serve healthcare facilities or their patients well.  The Court reasoned, “Although the purpose of the Social Security Act is to help healthcare patients, the CMS Mandate would have the opposite effect due to the loss of healthcare workers and healthcare funding to healthcare facilities.”  Finally, the Court criticized the Government for providing no alternatives, such as testing or considering natural immunity, to the vaccine requirement.

The Court criticized the necessity of an “emergency rule” when “infections and hospitalization rates are dropping, millions of people have already been infected, developing some form of natural immunity, and when people who have been fully vaccinated still become infected, mandatory vaccines as the only method of prevention makes no sense.”

It remains to be seen how facilities will react to the late-breaking news of the injunction, which was unexpected in most hospitals and medical settings. The Government is likely to apply for immediate appeal of Judge Doughty’s ruling.  Unless the appellate court quickly stays the Judge’s ruling, however, the vaccine mandate for healthcare workers will not go into effect on December 6 as anticipated.

Critchfield attorneys will keep up on the developing events surrounding all vaccine requirements. Contact your Critchfield attorney with questions.

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