16 States File New Challenge to Biden Administration’s Health Care Worker COVID-19 Vaccine Mandate

Louisiana and 15 other states on Feb. 4 lodged a new legal challenge against the federal government’s COVID-19 vaccine mandate for health care workers, arguing that the dominance of the Omicron virus variant undercuts the justification for the mandate.

Approximately 10.4 million workers fall under the vaccination requirements, which apply to every facility that receives Medicare or Medicaid funding.

The Supreme Court lifted injunctions against the mandate on Jan. 13, finding in a 5–4 decision that the Department of Health and Human Services’ (HHS) Centers for Medicare & Medicaid Services (CMS) had the authority to issue the rule requiring vaccination. The mandate took effect in 25 states in January and will take effect this month in the other 25 states, which had challenged the rule.

The rule, signed by Health Secretary Xavier Becerra, repeatedly references the danger the Delta virus variant poses to the unvaccinated, and says that vaccines “continue to be effective in preventing COVID-19 associated with the now-dominant Delta variant.”

Becerra had “good cause” to impose the rule without accepting comments, mandated in most circumstances under federal law, because of his “belief that any ‘further delay’ would endanger patient health and safety given the spread of the Delta variant and the upcoming winter season,” the nation’s top court ruled.

But as of mid-December 2021, the Omicron variant is the dominant strain in the United States, according to the Centers for Disease Control and Prevention, another agency within HHS.

“It is now established beyond any serious question that the secretary’s speculation was wrong. The Delta variant effectively disappeared from the scene within weeks of the issuance of the rule,” the states say.

The primary series of COVID-19 vaccines, required by the mandate, provide little protection against infection from Omicron and reduced protection against severe disease, studies show. “Just about everybody” will contract the variant, Dr. Anthony Fauci, President Joe Biden’s chief medical adviser, has said.

“The mandate was promulgated in response to the Delta variant, which now accounts for only 0.1 percent of all COVID-19 cases in the United States. But research suggests that COVID-19 vaccines do little to stop the transmission of the predominant strain today—the Omicron variant, which accounts for 99.9 percent of all cases—which undermines the premise for forcing people to submit to them,” Alabama Attorney General Steve Marshall, a Republican representing one of the 16 challenging states, said in a statement.

In addition, the federal government has shifted its position on several key fronts, such as issuing guidance saying health care workers who test positive for COVID-19 can still go to work, undercutting the rule that bars unvaccinated workers from working even if they test negative for COVID-19, the fresh challenge notes. Further, states and facilities are dealing with worker shortages due to the mandate, prompting some to appeal to the government to delay or abolish its mandate.

Despite the changing situation, CMS issued guidance on Jan. 25 (pdf) that broadens the mandate. In addition to health care workers, surveyors who enter health care facilities must be vaccinated, the agency said for the first time. That clashes directly with laws in the plaintiff states, such as a Montana law that prohibits discrimination based on vaccination status and an Indiana law that bars government entities from requiring anyone to show proof of vaccination.

The states are asking the federal court in Monroe, Louisiana, to block the mandate before it takes effect in 25 states that have previously challenged it in courts.

Workers in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming will be required to provide proof of receipt of one COVID-19 vaccine dose on Feb. 14 if the mandate isn’t blocked. They must become fully vaccinated, or finish a primary series of a vaccine, by March 15 to comply with the rule.

Workers in Texas have until Feb. 22 to get one dose and March 21 to become fully vaccinated.

In the other 25 states, the deadlines are Jan. 27 and Feb. 28.

CMS declined to comment on the filing, which saw existing plaintiffs Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia joined by Tennessee and Virginia.

Government lawyers told the court in January that the case was “effectively concluded” because of the Supreme Court’s ruling and moved for its dismissal.

The case is being overseen by U.S. District Judge Terry Doughty, a Trump appointee who in November 2021 blocked the mandate nationwide.

An appeals court, though, lifted the preliminary injunction in 26 states. A different judge imposed a block on the rule in Texas.

The Supreme Court lifted the injunctions that remained in half the country.