The Administration’s Vaccine Mandates: What is Going on?

All three of the federal government’s mandates have encountered legal challenges.

Let’s dive into the somewhat confusing status of the Biden Administration’s vaccine mandates.   

There are three: the first is the Occupational Safety and Health Administration (OSHA) mandate that applies to commercial businesses; the second is the Centers for Medicare & Medicaid Services (CMS) mandate that applies to healthcare workers at facilities participating in Medicare or Medicaid; and the third is what we will call the federal employee and federal contractor mandate.

All three of these mandates theoretically have an effective date of Jan. 4, 2021, with an emphasis on “theoretically.” That date may shift, depending on how these mandates fare in court.  

The first mandate, the OSHA mandate, applies to all commercial businesses in the country with 100 or more employees, and requires employees to either get the vaccine or test on a weekly basis. The OSHA mandate was immediately met with lawsuits in every regional federal appeals court with the exception of one.

And in fact, an appeals court has subsequently put a freeze on the OSHA mandate, blocking the rule from going forward. In response, OSHA announced last week that it was postponing enforcement and implementation of the rule pending court decisions.

Facilities to which the CMS mandate would apply include hospitals, of course, but also ambulatory surgery centers (ASCs), community mental health centers, home health agencies, hospices, rural health clinics, and long-term care facilities, among others.

The CMS mandate has been challenged in court as well by 24 states in total, including a separate lawsuit by the state of Florida. Earlier in the month, in fact, Florida passed legislation that prohibits private companies from mandating vaccines – which is, of course, in direct conflict with all three of the Administration’s vaccine mandates.

In contrast to how the OSHA mandate was stopped by the courts, last week a federal judge denied Florida’s request to block the CMS mandate.

Similar to the reasons given in the related lawsuits, Florida argued that healthcare facilities would lose a significant number of employees who would quit rather than get vaccinated, but the judge said that this conclusion is speculation, adding that there was no supporting evidence that demonstrated employees would leave. The court, at least in this instance, is letting the CMS mandate proceed.

As for the federal employee and contractor mandate, 20 states have filed suit against this one, but the mandate appears to still be on track to take effect Jan. 4.

So, if you’re keeping track, the OSHA mandate, requiring vaccines or testing for private companies, has been at least temporarily stopped from going forward.

The CMS mandate, however, is going forward for the time being. The CMS mandate requires vaccines for employees of most of the hospitals in the country, with no allowance for testing.

Finally, the federal employee mandate appears to be going forward as well, applying to federal employees, federal contractors, and federal subcontractors.

If you’re a student of political science, the vaccine mandate issue is an interesting interplay of state and federal rights, and the balance of power between the executive and the judicial branches.

If you’re the rest of us, however, it’s getting very difficult to understand just what we’re required to do.

Programming Note: Listen to Matthew Albright and the Monitor Mondays Legislative Update, sponsored by Zelis, Mondays at 10 Eastern.

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