December 8, 2021

For those hospitals hemorrhaging clinical workers and clerical staff due to the Biden administration’s COVID-19 vaccine mandate, there have been some recent developments that may have an impact on your facility.  By way of background, an interim final rule (IFR) promulgated last month laid down COVID vaccine requirements for facilities that participate with Medicare or Medicaid.  Specifically, every person who provides services in such a facility (which includes most acute care hospitals) was to be fully vaccinated by December 6 (for the Janssen vaccine) or January 4 (for the Pfizer and Moderna version of the vaccine).  These requirements have now come to a screeching halt.

Injection Injunction

On Monday of last week, a federal judge in Missouri halted the mandate in 10 states.  The following day, a federal judge in Louisiana expanded the injunction against the mandate.  This effectively left the Centers for Medicare and Medicaid Services (CMS) no choice but to announce late last week that the agency would not enforce the mandate for America’s healthcare workers. 

As part of his ruling, Judge Doughty, of the U.S. District Court for the Western District of Louisiana, wrote:

There 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. It is not clear that even an act of Congress mandating a vaccine would be constitutional.

The ruling against the mandate came on the heels of the U.S. Fifth Circuit Court of Appeals putting a stop to the Biden administration’s OSHA-related vaccine mandate, which would have required employees of mid to large companies (100 or more workers) to also get the vaccine by this week.  In its response to the health worker mandate ruling, CMS issued the following statement:

While we cannot comment on the litigation, CMS has remained committed to protecting the health and safety of beneficiaries and health care workers. The vaccine requirement for health care workers addresses the risk of unvaccinated health care staff to patient safety and provides stability and uniformity across the nation’s health care system.

Courts are rejecting these injection mandates—at least in terms of the executive branch’s right to impose them.  These recent rulings do not, of course, address the question of whether individual hospitals or health systems can impose a mandate on their employees pursuant to their own internal policies.  Indeed, many health facilities have such mandates in place; and, unless a court rules these unreasonable or unconstitutional, they may remain in place.  Consequently, the recent CMS decision to back off of the mandate for hospital workers will impact only those facilities that have no internal COVID injection mandate in place or plans for such.  For these facilities, the potential loss of staff due to reticence over the jab has been avoided—at least for now.

Planning for the Future

It remains to be seen how all this will play out in the circuit courts and potentially the U.S. Supreme Court.  We’re in a wait-and-see mode, which of course makes planning somewhat precarious.  Hospital decision-makers will need to have plans in place to account for all contingencies.  To this observer, there are at least three:

• Contingency 1: The CMS mandate will eventually be ruled constitutional and will move forward at some future date.  Hospital planners will need to have strategies in place to address the mandate provisions as discussed in our previous alert (e.g., policies and procedures for assuring all workers are vaccinated, policies and procedures for considering and granting exemptions).  In addition, they will need to be thinking about a pool of potential workers—including clinical workers—to replace those who will refuse the vaccine and who are not eligible for the exemptions.
   
• Contingency 2: The CMS mandate will eventually be ruled unconstitutional and thus tabled permanently.  In this eventuality, those facilities that have no vaccine mandate in place may move forward with the certain knowledge that a large segment of their workforce will be retained.  Major planning for large-scale worker replacements will be obviated.
   
• Contingency 3: The CMS mandate is eventually ruled unconstitutional but there are significant changes in the COVID landscape.  Under this scenario, hospital executives may choose to modify their current internal policy as to vaccine mandates.  For example, should a new wave of serious COVID variants occur (that are not offshoots of the vaccines), hospitals without a current internal mandate could end up reconsidering their policy.  Conversely, if decision-makers at hospitals that currently have an internal mandate in place should determine there is growing evidence against the efficacy and/or safety of the current vaccines, they may want to consider the rescinding of the mandate at their facilities. 

There is no way to know with any certainty at this point in time what the future holds.  It is prudent, therefore, to keep your options open, to plan for all possibilities and to keep track of the latest vaccine data as reported by eminent experts and medical agencies around the world.  If you have questions for us, please go to info@miramedgs.com.  Our business solutions are designed to assist hospitals in their mission of healing.  Let us hear from you!