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 the Bloomberg Law Daily Labor Report, in “Opponents of Health Worker Vaccine Mandate Aim for Right Court,” by Allie Reed.
Following is an excerpt:
The second and third challenges from Republican-led states to the Biden administration’s vaccine mandate for health-care workers are strategic plays to maximize the chances that a federal appeals court blocks the rule, legal observers said.
Republican-led states are pushing back against President Joe Biden‘s sweeping vaccine mandates, with an Occupational Safety and Health Administration vaccine-or-test rule for large employers being the main target. The Fifth Circuit blocked that rule, making the Centers for Medicare & Medicaid Services’ health-care worker rule the next priority.
The two lawsuits against the health-worker rule make similar claims to the first that the vaccine mandate will worsen health-care staffing shortages. If enough workers leave their jobs rather than get the jab, the states claim, the mandate could jeopardize access to care, particularly in rural communities.
The second suit was filed on behalf of 12 states with Republican attorneys general in federal court in Louisiana. Texas filed the third federal suit. The Fifth Circuit, which would hear appeals of both lawsuits, has 19 judges appointed by Republican presidents out of 26 active or senior judges.
“It’s a tactical decision,” said Frank Morris Jr., a member of Epstein Becker & Green. The strategy is to get the Fifth Circuit to view the health-worker rule “in the same light and hopefully get the same result” as the OSHA rule, Morris said. …
Legal Strategy
The lawsuits claim the CMS violated the Administrative Procedure Act and the Social Security Act by not giving impacted facilities the chance to comment on the rule before it took effect. The rule went through an expedited rulemaking process due to the public health emergency and took effect as soon as it was released. …
The lawsuits also allege the CMS does not have the statutory authority to “impose a broad vaccine mandate that Congress has not authorized,” the Missouri complaint said.
The fact that the CMS has never mandated a vaccination before is not enough to show that the CMS exceeded its authority, Morris said. “Although this is a serious and far-reaching rule, and is, essentially, unprecedented, that alone doesn’t make it impermissible,” Morris said. …
Don’t Wait …
Until the CMS and the courts give providers more clarity, “I certainly wouldn’t terminate anyone,” Morris said.
