COVID Vaccine Mandate for Healthcare Workers On Hold Nationwide and Other COVID Developments

By Heather J. Van Meter - Bullard Law

December 1, 2021

A federal judge in Louisiana halted implementation nationwide of President Biden’s vaccine mandate for healthcare workers.

Louisiana Federal Judge Terry Doughty has issued a nationwide preliminary injunction against President Biden’s vaccine mandate for healthcare workers. The mandate required all healthcare workers in hospitals, nursing homes, and other medical settings receiving Medicare or Medicaid funding to have a first vaccine shot by December 6, 2021 and be fully vaccinated by January 4, 2022. On this legal challenge brought by fourteen states and other interested parties, Judge Doughty wrote, “[t]here is no question that mandating a vaccine to 10.3 million health care workers is something that should be done by Congress, not a government agency… [i]t is not clear that even an act of Congress mandating a vaccine would be constitutional.” Issuance of the preliminary injunction requires in part a showing of likelihood of success on the merits of the arguments, meaning Judge Doughty believes at this point the legal challenge to the healthcare worker vaccine mandate will succeed, although further briefing and arguments will be conducted, and ultimately a regional appeals court and possibly the U.S. Supreme Court will decide the case. Of particular note is Judge Doughty’s agreement with the plaintiffs that the vaccine mandate was “arbitrary and capricious.” While Judge Doughty’s preliminary injunction covered 40 states, a prior ruling from a Missouri federal judge issued a preliminary injunction covering the other ten states, making the preliminary injunction nationwide in effect.

This preliminary injunction comes shortly after an appeals court temporarily blocked nationwide the President’s vaccine mandate for all private employers of 100 or more workers, see our prior alert here.

What this means for healthcare employers is that the federal vaccine mandate is on hold. Healthcare employers implementing their own vaccine mandates for employees may still proceed—however, for healthcare employers with union-represented employees, this may mean an obligation to bargain over both the decision to implement such a mandate as well as the effects of that mandate. Additionally, healthcare employers must still comply with state and local mandates and regulations relating to vaccination. For instance, states like Oregon and Washington have already implemented vaccine mandates which required all healthcare workers to be vaccinated by October 18, 2021 (read our prior alert on this here). Meaning the U.S. Centers for Medicare and Medicaid Services’ vaccine mandate would have made a very small difference in these states.

Another federal judge halted implementation of the federal contractor vaccine mandate in three eastern states, with potentially more to come.

A federal judge in Kentucky issued a preliminary injunction preventing the federal government from enforcing the vaccine mandate for federal contractors and those employees working on federally funded projects. The injunction only covers Kentucky, Ohio, and Tennessee; however, as with the healthcare worker vaccine mandate, many other cases are pending and there is some likelihood that an injunction will eventually be issued nationwide. The federal contractor vaccine mandate is estimated to cover roughly a quarter of the United States’ workforce. Kentucky Federal Judge Van Tatenhove issued a preliminary injunction on the ground that the federal government lacks legal authority to require vaccinations and that such vaccine mandates likely violate the U.S. Constitution. Judge Van Tatenhove wrote, “[a]lthough Congress used its power to delegate procurement authority to the president to promote economy and efficiency in federal contracting, that power has its limits.”

What this means for employers doing any federal contracting work based in Oregon and Washington is, for now, nothing has changed because this preliminary injunction only applies to Kentucky, Ohio, and Tennessee. However, regional employers should stay tuned for further developments because, with other cases pending, there is some likelihood a nationwide preliminary injunction will be issued, halting implementation of the federal contractor vaccine mandate as well, similar to the healthcare worker vaccine mandate.

Several federal courts and the Fifth Circuit Court of Appeals have now issued decisions suggesting federal government overreach exists with vaccine mandates and opining that federal government vaccine mandates may ultimately be determined to be unconstitutional. This does not mean that private employer vaccine mandates are unconstitutional, but state and local government employer mandates are likely to be questioned in court next with likely mixed outcomes depending on the state.

The first treatment pill for the COVID virus is on its way to emergency use approval, in what may be the beginning of a “test and treat” future for COVID.

Pharmaceutical company Merck has passed the first hurdle in obtaining Food and Drug Administration (FDA) emergency use approval and eventual full approval for the first treatment pill for the COVID virus. An FDA advisory panel has recommended the FDA approve authorization of Merck’s molnupiravir drug, which moderately reduces the risk of severe illness and hospitalization in COVID cases if taken within the first few days of infection. While Merck’s molnupiravir drug shows modest success at reducing illness and may have some reproductive risks, a treatment pill by Pfizer shows a substantial reduction in severe illness and hospitalization and is next up for approval consideration. Because Merck’s pill appears to be well on its way towards FDA approval, the more effective Pfizer pill is likely to be approved as well.

What this means for employers is that COVID treatment options are expanding, and their effectiveness is improving, giving hope for a more routine medical situation for employers and employees exposed to the COVID virus. This is welcome news after the scientific realization that vaccine effectiveness wears off over time, with vaccine-generated antibodies sometimes lasting only a few months depending on the person. Studies from Israel are consistently showing natural immunity from having and recovering from COVID is much longer-lasting, suggesting that employers may soon be asked to consider accepting antibody tests from employees who recovered from COVID in addition to vaccine or booster shot proof. Employers should also begin to consider the possibility that rapid and early testing for the COVID virus may become routine, with on-site rapid tests if any employee displays COVID symptoms at work or symptomatic employees encouraged or required to stay home and do a rapid test before coming to work. Because the COVID treatment pills are only proven to be effective if taken in the first few days of COVID exposure, early detection is key to effective treatment. This may be the beginning of a “test and treat” future for COVID.

New COVID variants are spreading globally.

If you haven’t already heard, there is a new Omicron variant of the COVID virus that is spreading globally. This is the fifth globally-spreading “variant of concern” according to the World Health Organization (WHO), so we are in familiar territory. Virus mutations were expected and will continue to occur for months or years to come. Indeed, the common cold and influenza viruses mutate regularly. The Omicron variant has been identified on all major continents, and it is likely already in the United States or will be shortly. Doctors in South Africa, where the Omicron variant was first identified, are reporting that illness with the Omicron variant appears to be mild in most cases. As with the Delta variant, the Omicron variant may prove to be more easily spread but not any more illness-causing than prior variants. Vaccine efficacy against the Omicron variant remains to be determined, although if recent experience is any guide, the vaccine is likely to be at least somewhat effective against the Omicron variant, as has been true with the Delta variant. Much remains to be determined, and the Centers for Disease Control and Prevention (CDC), the WHO, and scientists around the world are working quickly to determine as much as possible about the Omicron variant.

What this means for employers is that continuing to follow state and local mandates and OSHA guidelines for COVID are important. Routine cleaning, air cleaning, HVAC maintenance, mask wearing if applicable, encouraging employees to stay home and get tested if they feel sick, following isolation and quarantining regulations and guidelines, notification systems for employee exposures, and all other mandates and guidelines for COVID should continue to be followed.  

If employers have any questions about these legal developments or how to comply with COVID mandates and guidelines, contact Bullard Law.