White House gears up for COVID-19 vaccine mandate court battle

The Biden administration is ready to fight court cases seeking to stimy the implement of a national COVID-19 vaccine mandate for large employers.

In an interview Nov. 7 with ABC This Week, U.S. Surgeon General Vivek Murthy, MD, said that the administration is ready to defend the mandates.

“The president and the administration wouldn’t have put these requirements in place if they didn’t think they were appropriate and necessary,” he said. “The administration is certainly prepared to defend them.”

The statement came a day after the 5th U.S. Circuit Court of Appeals in New Orleans granted an emergency stay on the mandate which is supposed to take full effect Jan. 4. According to a report from National Public Radio, at least 27 states have filed lawsuits challenging the requirement in several different circuit courts.

Last week, the administration set a Jan. 4 deadline for large companies to ensure their workforces are fully vaccinated against COVID-19 in a move expected to cover 84 million workers in the private sector. President Joe R. Biden announced his intention to require the shots in a speech Sept. 9.

Another mandate which has received less pushback, but may have a greater impact on healthcare is the requirement for healthcare workers at Medicare and Medicaid eligible facilities to be vaccinated against COVID-19.

Centers for Medicare & Medicaid Services (CMS) has released an emergency regulation mandating the vaccinations in an effort to protect both the workers and patients. The regulation sets a Dec. 5, 2021, deadline for those covered facilities to establish a policy to ensure all eligible staff have received either the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine before they provide care, treatment, or other services to patients. All eligible staff must be fully vaccinated by Jan. 4, 2022.

“Ensuring patient safety and protection from COVID-19 has been the focus of our efforts in combatting the pandemic and the constantly evolving challenges we’re seeing,” CMS Administrator Chiquita Brooks-LaSure says in a news release. “Today’s action addresses the risk of unvaccinated health care staff to patient safety and provides stability and uniformity across the nation’s health care system to strengthen the health of people and the providers who care for them.”

The requirement will apply to about 76,000 providers and will cover more than 17 million healthcare workers across the U.S. It will create a consistent standard across Medicare and Medicaid and give patients piece of mind about their clinician’s vaccination status.

As previously reported, mandating employee vaccinations is a prospect fraught with possible pitfalls for physicians and an improperly implemented mandate could see employers running afoul of a number of laws including: the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), and certain privacy laws.

The U.S. Equal Employment Opportunity Commission reports that under the ADA, Title VII, and other federal employment nondiscrimination laws, employers can require all employees who enter their work premises to be vaccinated for COVID-19. However, this mandate is subject to the reasonable accommodation provisions of various laws and other equal employment opportunity considerations.