States Challenge CMS Vaccine Mandate for Healthcare Workers

By: Emily H. Lineweaver

As we previously reported, the Centers for Medicare & Medicaid Services (CMS) issued an emergency regulation effective November 5, 2021 mandating that all eligible staff of Medicare and Medicaid participating facilities receive the COVID-19 vaccine.  Ten states have filed suit against the federal government in the Eastern District of Missouri challenging the vaccine mandate. The suit seeks a preliminary or permanent injunction of the vaccine mandate, alleging it “will have devastating adverse effects on healthcare services in their States, particularly in their rural communities” because of the threatened job loss if the employee does not comply. In order to be in compliance, facilities covered by the mandate “must establish a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by December 5, 2021. All eligible staff must have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by January 4, 2022.” The regulation does provide for exemptions based on medical conditions and religious beliefs. The regulation can be viewed here.

According to the lawsuit, it is feared this vaccine mandate could “exacerbate an alarming shortage of healthcare workers, particularly in rural communities, that has already reached a boiling point.” The lawsuit also calls into question CMS’s authority to implement the mandate, calling it an “unprecedented intrusion on States’ police powers.” The suit was filed by  the attorney general of Missouri, and joining the suit were the attorneys general of Alaska, Arkansas, Iowa, Kansas, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. The case is Missouri, et al v. Biden et al., E.D. Mo., No. 4:21-cv-01329, complaint filed 11/10/21, and can be viewed here.

Emily H. Lineweaver
Emily Lineweaver is a member of the Firm’s Health Care Service team and concentrates her practice in the areas of health care and related litigation. Read More