Q: A new lawsuit has been filed by some states to stop the COVID-19 vaccine mandate for healthcare workers. How is it different?
A: A coalition of 16 state filed a complaint on Feb. 4, 2022, asserting that the federal vaccine mandate for healthcare workers was based upon then-current data around the delta variant. At that time, delta accounted for 98.7% of U.S. cases.
The states involved in filing the new lawsuit are Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, Ohio, Tennessee, and Virginia. Those states argue the mandate “utterly fails to account for changes in data and circumstances …” They allege the changes constitute a structural defect and that the mandate will do little — if anything — to prevent transmission of the now dominant omicron variant to patients and staff.
The new complaint alleges that: (1) CMS failed to consider that the pandemic is continually evolving; (2) that the delta variant has given way to omicron; and (3) the vaccines do not protect against omicron. The states claim that this makes the vaccine mandate arbitrary and capricious under federal law.
In January, the U.S. Supreme Court was fairly unequivocal in upholding CMS’s authority to issue the mandate. Although the legal arguments in the new complaint are essentially the same, the factual differences around the omicron variant might lead the federal courts to view the CMS mandate in a different light. If the case makes it to the U.S. Supreme Court, the prior ruling would most likely be upheld However, the changed factual circumstances related to omicron could cause the court to give the case a second look, and may persuade some on the court to agree that the changed circumstances make the rule arbitrary and capricious.
