Health Systems Backtrack on Vaccine Mandates in Light of Court Ruling

Dec. 15, 2021
In the wake of a federal circuit court ruling earlier this month halting CMS’s federal healthcare worker vaccine mandate, some hospitals and health systems nationwide are pausing their own mandates

The preliminary injunction issued on Dec. 1 by a Louisiana judge against the Centers for Medicare and Medicaid Services (CMS) nationwide healthcare worker vaccine mandate has led to the backpedaling of numerous hospitals and health systems on their organization-wide mandates.

In the wake of that court ruling pausing the federal healthcare worker vaccine mandate initiated by the federal Centers for Medicare and Medicaid Services (CMS) on Nov. 4 through emergency rulemaking, hospitals, health systems, and even hospital associations have been backpedaling on the vaccine mandates that they had been establishing in accordance with that CMS directive. Almost immediately following a Dec. 1 ruling by the U.S. District Court for the Western District of Louisiana granting a preliminary injunction enjoining CMS from enforcing that mandate, a flurry of backpedaling began to take place nationwide. That preliminary injunction had come in response to a lawsuit filed by ten state attorneys general on Nov. 10.

As the Wall Street Journal’s Robbie Whelan and Melanie Evans wrote on Dec. 13, “Some of the largest U.S. hospital systems have dropped Covid-19 vaccine mandates for staff after a federal judge temporarily halted a Biden administration mandate that healthcare workers get the shots. Hospital operators including HCA Healthcare Inc. and Tenet Healthcare Corp. as well as nonprofits AdventHealth and the Cleveland Clinic are dropping the mandates. Labor costs in the industry have soared, and hospitals struggled to retain enough nurses, technicians and even janitors to handle higher hospitalizations in recent months as the Delta variant raged. Vaccine mandates have been a factor constraining the supply of healthcare workers, according to hospital executives, public-health authorities and nursing groups,” Whelan and Evans wrote, noting that “Many hospitals already struggled to find workers, including nurses, before the pandemic. The shortages were compounded by burnout among many medical workers and the lure of high pay rates offered to nurses who travel to hot spots on short-term contracts.” They also cited an estimate from the American Hospital Associate estimating that 42 percent of U.S. hospitals have Covid-19 vaccine mandates in place. “More recently,” they wrote, “thousands of nurses have left the industry or lost their jobs rather than get vaccinated. As of September, 30% of workers at more than 2,000 hospitals across the country surveyed by the Centers for Disease Control and Prevention were unvaccinated.

“It’s been a mass exodus, and a lot of people in the healthcare industry are willing to go and shop around,” Wade Symons, an employee-benefits lawyer and head of consulting firm Mercer’s U.S. regulatory practice, told the WSJ reporters. “If you get certain healthcare facilities that don’t require it, those could be a magnet for those people who don’t want the vaccine. They’ll probably have an easier time attracting labor.”

And the WSJ reporters added that “A federal judge in Louisiana ruled in November that the Centers for Medicare and Medicaid Services didn’t have the authority to mandate vaccines for healthcare workers, blocking a Biden administration rule that affected some 10 million workers. The mandate had required all workers at facilities that participate in Medicare and Medicaid to get second shots by Jan. 4. The American Hospital Association estimates that 42% of U.S. hospitals, some 2,640 facilities, have Covid-19 vaccine mandates in place. And they quoted Alan Levine, CEO of Ballad Health, which runs 21 hospitals in Tennessee and Virginia, as stating that “I don’t think the mandates were helpful and I think the court in Louisiana did everyone a service,” and noting that some 2,000 of his health system’s 14,000 employees are unvaccinated. “That many people having to be terminated would have been devastating to our system,” they quoted Levin as stating.

Hospital-based organizations, and even hospital associations, are being pulled into the policy vortex. On Dec. 1, the Helena-based Montana Hospital Association posted a statement to its website, attributed to Montana Hospital Association president Rich Rasmussen. “Montana hospitals have an unwavering commitment to protect the health of our patients, our team members and the communities we serve,” Rasmussen said in the statement. “Hospitals have worked to comply with the federal COVID-19 vaccination requirement as a condition of providing care to the state’s 524,000 residents who are covered by Medicare, Medicaid and CHIP. With the federal COVID-19 vaccination requirement now on hold, Montana hospitals have ceased the implementation of the federal vaccine mandate and will focus on continued compliance with Montana state law. Montana healthcare providers have been in the very difficult position of complying with conflicting state and federal laws. We value every one of our team members and it is unfortunate that they have been drawn into this conflict.”

Further, Rasmussen said, “It is important to point out that the plaintiffs in this recent legal challenge are 10 states including Montana and the defendant is the Biden administration. Hospitals are neither plaintiffs nor defendants in the cases. Hospitals were simply following the federal mandate as a Condition of Participation in the Medicare and Medicaid programs. We remain committed to protecting and providing healthcare for our communities while ensuring the financial viability of our hospitals. The COVID-19 vaccine is a safe and effective tool for reducing disease and hospitalizations. Hospitals will continue to urge all eligible Montanans, including our healthcare staff, to get vaccinated against COVID-19.

On December 2, the Orlando-based AdventHealth suspended its vaccine mandate. As Samantha Dunne of WKMG News 6, the CBS-affiliated local station in Orlando, wrote on that date, “AdventHealth announced on Thursday it’s suspending the COVID-19 vaccine mandate in place for employees. The health organization previously sent a letter to employees saying they had until Dec. 6 to get their first shot of the Pfizer or Moderna vaccines, or a single shot of Johnson & Johnson vaccine and until Jan. 4 to receive the second dose of the two-shot vaccines. While the company still strongly encourages team members to receive the COVID-19 vaccine, recent court decisions resulted in AdventHealth’s reconsideration of a vaccine mandate,” she wrote.

And Dunne quoted AdventHealth spokesperson Jeff Grainger as saying in a statement that, “Due to recent decisions by the federal courts to block the CMS vaccine mandate, we are suspending the vaccination requirements prescribed by this mandate. We will continue to monitor the ongoing litigation regarding the federal law.” Dunne further wrote that “AdventHealth officials added they are committed to protecting the health of their employees, as well as their patients and communities,” further quoting Grainer’s statement, which went on to say that, “Based on scientific evidence and what we see in our hospitals every day, COVID-19 vaccines are safe and effective at reducing both the risk of becoming infected and the level of harm in the case of a breakthrough infection.”

Meanwhile, the Cleveland Clinic organization on Dec. 2 posted the following statement to its website: “A federal court recently issued a preliminary injunction, temporarily blocking enforcement of the COVID-19 vaccine federal mandate by the Centers for Medicare & Medicaid Services (CMS). That rule is now on hold. In light of these developments, we are pausing the implementation of our COVID-19 vaccine policy, which required all employees and those who provide services with us to either receive the COVID-19 vaccine or an approved exemption with accommodations. However, to further strengthen our protection of employees and patients, we will put in place additional safety requirements for employees who are unvaccinated, including periodic testing for those providing direct clinical care. As a health system, we continue to strongly encourage all employees to receive the COVID-19 vaccine, and we are proud that the majority of our employees are already vaccinated,” the statement concluded.

As the Salt Lake Tribune’s Jordan Miller reported on Dec. 1, “Two Utah healthcare providers are pausing COVID-19 vaccine requirements for caregivers until the legality of vaccine mandates is decided in the courts, according to a Tuesday statement from Intermountain Healthcare. Intermountain is joined by MountainStar Healthcare/HCA Healthcare in this temporary halt. A nationwide stay issued Nov. 30 by a federal court put the Centers for Medicare & Medicaid Services (CMS) requirement on hold, so Intermountain is temporarily pausing its suspension of caregivers who do not adhere to the requirement. According to a statement from Intermountain, 95% of Intermountain Healthcare’s caregivers have complied with the government requirement prior to the pause. The deadline for the original requirement was Dec. 5, and Intermountain continues ‘to encourage those remaining unvaccinated caregivers to get vaccinated as soon as possible.’”

Still, numerous hospital-based organizations have kept their staff vaccine mandates in place. As Miller wrote, “The University of Utah Health’s vaccine requirement remains in place as they await more direction from state officials, a spokesperson said Tuesday night.”