Will Vaccine Mandate for Health Care Workers Be First to Reach the Supreme Court?

A divided U.S. Court of Appeals panel denied Florida’s motion to injunct the Biden Administration interim rule requiring Medicare providers and Medicaid providers make sure all workers receive COVID-19 shots earlier this week. The court’s opinion was written by Robin Rosenbaum and Jill Pryor, judges. Florida v. HHS. Judge Barbara Lagoa abstained.

Panel majority agreed with the assertion of federal officials that the Center for Medicare and Medicaid Services is authorized to place requirements on Medicare and Medicaid providers in order to safeguard the safety and health of patients. I  described the rule at issue and outlined some of the arguments for such authority in posts here and here. A panel concluded that CMS had “good reason” to skip the notice-and comment process to create an interim final ruling.

The majority’s opinion also addressed the issue of Florida’s request to a preliminary injunction. That is because a Louisiana district judge issued a nationwide order against this rule last week. The nationwide injunction, as I have noted in my post, was issued without any substantive analysis. It also referred to authority which did not support that proposition. As there are no guarantees that Louisiana’s injunctions will be rescinded, panel majority relied on the weaknesses in the analysis by the district court.

Judge Lagoa voted against, arguing that the CMS mandate was too broad and exceeded the agency’s authority. She also argued that it was capricious and arbitrary. Although Congress gave CMS authority to regulate, including to protect the safety and health of Medicare recipients and Medicaid recipients (among other things), she didn’t believe CMS had any justification. ThisThese grounds should be considered. She noted, among other things, that CMS applies to many healthcare facility employees without patient contact. Administrators and contractors are also covered by the rule. Therefore, it is too broad to ensure the safety of Medicare and Medicaid beneficiaries. It was her fault that the agency refused to accept less restrictive alternatives.

Many of the objections raised against the CMS rule are similar to those made against other federal vaccine requirements. While the CMS rule seems more restrictive than OSHA ETS in many ways, it is also on stronger ground. There are strong statutory as well as policy arguments to mandate vaccination of Medicare providers and Medicaid workers. They also outweigh those supporting the requirement of vaccination for workers of all large employers. CMS can justify the CMS rule to safeguard Medicare and Medicaid recipients. CMS is clearly able to make this decision. The requirement to test or vaccinate all workers at companies with more than 100 employees seems less like a pragmistic measure to improve overall vaccination rates. It is also not a means to enhance workplace safety. OSHA does have the power to do this.

It is unclear whether it is the most vulnerable federal vaccine rule. However, this Eleventh Circuit decision could make the CMS mandate the first Biden Administration COVID-19 vaccine rule to be reviewed by the Supreme Court. Florida may also first request en banc review. The OSHA vaccinate or test ETS was previously ruled by the U.S. Court of Appeals, Fifth Circuit. However, all challenges to OSHA have been consolidated at the U.S. Court of Appeals, Sixth Circuit. It will take some time for the OSHA rule to be up. According to the OSH Act the ETS can only be in effect for 6 months. OSHA may adopt a permanent substitute, which could mean that OSHA will have to start again from square 1.  The CMS rule that requires vaccination of health workers may be the first Biden Administration vaccine requirement for justices to take into account.