On May 1, 2023, the White House announced it would end the COVID-19 vaccine requirements for federal employees, federal contractors and international air travelers effective May 11, the same day the federally declared COVID-19 public health emergency ends. The U.S. Department of Health and Human Services (HHS) and the U.S. Department of Homeland Security (DHS) also announced, effective May 11, they would end their vaccination requirements for healthcare facilities certified by the Centers for Medicare & Medicaid Services (CMS), Head Start educators and certain noncitizens at the country’s land borders. HHS and DHS are expected to provide more information in the coming days about the unwinding of the vaccination requirements.
As previously discussed in McGuireWoods’ Nov. 5, 2021, and Jan. 27, 2022, alerts, HHS required Medicare- and Medicaid-certified providers and suppliers to vaccinate their staff, irrespective of their level of clinical responsibility, employment, contractor or volunteer status, or patient contact. As a result, the vaccine mandate affected thousands of healthcare providers and millions of individuals employed by, contracted with or otherwise engaged in other services (such as volunteers or trainees) in CMS-certified healthcare facilities. This included hospitals, hospices, ambulatory surgery centers, skilled nursing facilities, outpatient physical therapy facilities, end-stage renal disease facilities and laboratories.
CMS’ interim final rule — which the U.S. Supreme Court permitted CMS to enforce on Jan. 13, 2022 — threatened covered facilities with plans of correction, civil monetary penalties, denial of payment and/or Medicare or Medicaid termination. CMS further required its authorized surveyors to review facilities’ compliance with the interim final rule’s vaccine mandate. At the same time, many healthcare employees alleged that their rights had been violated by either the regulation generally or a particular facility’s implementation of mandate exception reviews based on disability, medical conditions or sincerely held religious beliefs. Some facilities in turn raised concerns that the vaccine mandate challenged their ability to recruit and retain healthcare workers who could work for non-CMS-certified providers. The May 1 announcement lifting the vaccine requirement is expected to resolve many of these concerns.
With respect to federal contractors, the announcement comes on the heels of the federal government’s largely unsuccessful efforts to defend the federal contractor vaccine mandate in the courts. Three federal Courts of Appeals — the Fifth Circuit, Sixth Circuit and Eleventh Circuit — affirmed injunctions halting the mandate as it applied to Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, West Virginia, Kentucky, Ohio, Tennessee, Indiana, Louisiana and Mississippi as contracting parties, as well as federal contracts with members of the Associated Builders and Contractors. Other injunctions affected Florida as a contracting party and all covered federal contracts in Alaska, Arkansas, Iowa, Montana, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
The day after the Eleventh Circuit’s decision took effect, the Safer Federal Workforce Task Force provided guidance that agencies should not take any steps to mandate contractor vaccines or enforce Executive Order 14042 contract clauses nationwide until further notice. Subsequently, the Ninth Circuit dissolved an injunction previously in effect in Arizona, allowing the vaccine mandate to proceed in that state if the federal government reinstates the mandate (which has not occurred).
As a result, the White House’s May 1 announcement ending vaccine mandates for federal contractors and subcontractors likely will render moot many, if not all, of the pending legal disputes challenging President Biden’s authority to issue Executive Order 14042.
