Vaccine Mandate Lawsuits Center Workforce Management, Shortages
The legal debates surrounding the coronavirus vaccine mandate have included rare features, such as CMS skipping the commentary period and states suing against the agency’s guidance.
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- Updated 2/28/22: This article has been updated to include the correct position for Jon Kammerzelt. A previous version cited Kammerzelt's position as "chair of the Health and Life Sciences Group" but his accurate title is "chair of the Health and Life Sciences Group in the firm's Madison office."
The latest round of lawsuits around the CMS vaccine mandate has evoked important questions around labor shortages and federal involvement in healthcare workforce management.
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In early November 2021, the Biden administration announced a vaccine mandate for all healthcare facilities that participated in Medicare and Medicaid, a rule which impacted 76,000 facilities and 10.4 million healthcare workers. Since it was announced, the vaccine mandate has received a wide range of reactions from the healthcare community.
In early February 2022, 16 states filed a lawsuit in the U.S. District Court for the Western District of Louisiana to stop the vaccine mandate from going into effect. This is the latest challenge to the mandate, following a case where the US Supreme Court upheld the CMS vaccine mandate for healthcare workers.
The newest lawsuit is not likely to overturn the vaccine mandate, according to Sarah Coyne, partner at Quarles and Brady and adjunct professor at the University of Wisconsin-Madison School of Law, and Jon Kammerzelt, partner at Quarles and Brady and chair of the Health and Life Sciences Group in the firm's Madison office.
Generally, the new lawsuit recycles many of the same arguments as the previous one that was settled in the Supreme Court, leaning heavily on the potential labor market impact and financial impacts for rural communities and states overall.
The most novel argument is that CMS skipped the comment period on the vaccine mandate because the Delta variant posed an immediate threat. However, since CMS issued the mandate, the Delta variant is no longer the predominant strain of the coronavirus pandemic. Therefore, states are arguing that the case should be revisited.
However, Coyne and Kammerzelt acknowledged that certain unprecedented factors mark the case.
As far as the agency’s actions go, it is not unprecedented but indeed rare that CMS would skip the comment period to impose a mandate. Moreover, the agency does not usually involve itself in healthcare workforce management, and the guidance extends the mandate not only to hospital employees but also to vendors that come into the hospital.
On the state’s side, it is unusual to see a legal dispute over an agency’s guidance. The agency issued a mandate and then released guidance, which explains how relevant entities should apply the mandate. The guidance applies the mandate to state surveyors, and the states in the lawsuit are attacking that element of the guidance in their arguments.
The lawsuit shines a spotlight on federal involvement in healthcare workforce management and also on labor shortages in the healthcare industry.
“I certainly understand the shock waves that have come out from this mandate,” Coyne acknowledged. “There are some things that are unusual and really difficult to implement. But I don't think the lesson from that is that government shouldn't get involved.”
