November 29, 2021

Volume XI, Number 333

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10 States Sue Centers for Medicare & Medicaid Over COVID-19 Vaccine Mandate for Healthcare Workers

A group of states has sued President Joe Biden and his administration challenging the Centers for Medicare and Medicaid Services’ (CMS) Interim Final Rule (IFR) setting COVID-19 vaccination requirements for a range of employees working at Medicare- and Medicaid-certified providers and suppliers.

On November 10, 2021, 10 states led by Eric S. Schmitt, the attorney general of the State of Missouri, filed a lawsuit in the U.S. District Court for the Eastern District of Missouri seeking a declaratory ruling, as well as preliminary and permanent injunctions enjoining CMS from imposing the IFR’s mandate. Alaska, Arkansas, Iowa, Kansas, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming are the other states in the suit. This lawsuit is similar to ones challenging new Biden Administration COVID-19 vaccination requirements for federal contractors and employers with a total of 100 or more employees.

In part, the states claim that:

  • CMS failed to comply with the Administrative Procedure Act (APA). They claim that the IFR was arbitrary, capricious, and an abuse of discretion, especially because, the states allege, the vaccination requirement will cause healthcare workers to leave their employers at a time when hospitals and other healthcare providers already are struggling with substantial staffing shortages.

  • The IFR’s broad scope (covered are employees, as well as volunteers and contractors performing services for the covered provider or supplier) is too removed from the rationale of protecting patient safety. Therefore, it is arbitrary and capricious under the APA.

  • CMS failed to comply with the APA’s notice-and-comment requirements.

  • The mandate exceeds the rulemaking power of CMS and violates the U.S. Constitution’s Tenth Amendment by encroaching on a state’s authority to regulate public health.

The lawsuit also alleges violations of the Social Security Act, failure to consult with appropriate state agencies under 42 U.S.C. Section 1395z, failure to prepare the requisite regulatory impact analysis, unlawful use of the federal government’s spending power, and unlawfully compelling states to implement this program in violation of the Anti-Commandeering Doctrine.

Employers (or third parties indirectly covered by the IFR) should continue planning for IFR compliance, absent further rulings from the court. Key compliance dates are December 5 and January 4.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 316
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About this Author

Michael Bertoncini, Jackson Lewis, labor relations attorney, employment litigation lawyer, NLRB proceedings counsel, arbitration law
Principal

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, and employment law counseling and litigation.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with...

617-367-0025
 Jackson Lewis Law Firm, Sarah R. Skubas, Associate, Litigation Attorney, discrimination, harassment
Associate

Sarah R. Skubas is an Associate in the Hartford, Connecticut, office of Jackson Lewis P.C. Her practice is focused on employment litigation, preventive counseling and labor relations.

Ms. Skubas defends employers against claims of discrimination, harassment, retaliation, wage and hour violations and state and federal FMLA violations. She also assists employers in providing preventive counseling, preparing employee handbooks and policies and procedures, advising on such personnel matters as hiring and firing, performance management, internal investigations and...

860-522-0404
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