Frank C. Morris, Jr., Member of the Firm in the Litigation, Employee Benefits & Executive Compensation, and Employment, Labor & Workforce Management practices, in the firm’s Washington, DC, office, was quoted in Bloomberg Law, in “Health Worker Vaccine Mandate Expected to Withstand Challenges,” by Allie Reed.
Following is an excerpt:
The Biden administration’s mandate that health-care workers at facilities paid by Medicare and Medicare get a Covid-19 vaccination is likely to hold up against future court challenges, putting it on firmer ground than the vaccine-or-test rule for large companies that has already been halted, legal observers said.
The two rules released Nov. 4 by the Centers for Medicare & Medicaid Services and the U.S. Labor Department’s Occupational Safety and Health Administration represent a significant flex of federal muscle, testing the liberties and limits of the agencies.
The Biden administration is using the sweeping vaccine mandates to corner the unvaccinated into getting the jab. About 17 million health-care workers fighting the pandemic from the front lines are covered by the rule, which is aimed at helping to keep staff and patients safe in an industry not immune to vaccine hesitancy.
“There will undoubtedly be challenges in court” to the CMS rule, said Frank Morris Jr., a member of Epstein Becker & Green P.C. who works with employers on Americans with Disabilities Act and labor issues. But there is not “any great likelihood that those challenges would be successful,” Morris said.
Firm Footing
The CMS rule requires medical employers to consider religious and medical exemptions and doesn’t apply to employees who work fully remotely. …
Federally administered programs are allowed to govern the terms of participation for facilities they fund—and can withhold funding for facilities that don’t meet those standards. “No one has an absolute right to participate in the government program,” and those participants “may have to dance to the music that the federal government plays,” Morris said. …
State Confusion
The CMS rule “pre-empts any state law to the contrary” under the “Supremacy Clause of the U.S. Constitution,” the agency said. Health-care facilities in Arkansas, Georgia, Indiana, Montana, Tennessee, and Texas, though, were all previously banned from mandating the vaccine for their workers, according to data from the National Academy for State Health Policy. …
Facilities should “move forward with becoming compliant with the CMS interim final rule” while they await more guidance, Morris said. The timeline for compliance is already relatively short, and it is “far more likely” that federal law will trump state law, Morris said. Workers have to be fully vaccinated by Jan. 4, 2022, under the rule.
“They would be in a very poor position if they don’t start to move forward with compliance activities,” Morris said.
Related reading:
McKnights Long-Term Care News, "COVID Vaccine Mandate Will Survive Challenges, Experts Believe," by Kimberly Marselas and Danielle Brown.
