Vaccine mandate: Biden administration files response to stay

Wrangling over the requirement continues in the courts.

The Biden administration has filed its response to an appeals court’s stay of the COVID-19 vaccine mandate for large companies.

In a Nov. 8 filing in the Fifth Circuit Court of Appeals in New Orleans, the administration argues that the requirement falls within the purview of the Occupational Safety and Health Administration (OSHA) to implement. The mandate in question calls on companies with more than 100 employees to require employees who have not been vaccinated against COVID-19 to wear masks starting Dec. 5 and undergo weekly testing should they stay unvaccinated by Jan. 4, 2022.

The filing argues that the mandate’s opponents are unlikely to prevail in the case citing the plaintiff’s argument resting on the unconstitutional powers allegedly exercised by OSHA in imposing the requirement. The administration says that OSHA’s authority in the matter is a matter of established law and that risk to millions of workers outweighs the perceived harms cited by mandate opponents.

“Petitioners seek emergency relief, but most of their asserted harms are at least a month off, and many of their claimed harms relate to a testing requirement that does not become effective until January, 2022,” the filing says.

According to a report from National Public Radio, at least 27 states have filed lawsuits challenging the requirement in several different circuit courts. These cases will eventually be merged and be assigned to a randomly assigned appeals court later this month.

White House advisors seemed prepared to fight for the mandate with Surgeon General Vivek Murthy, MD, taking to television over the weekend to tout the need for its implementation.

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.

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.