GrayRobinson Labor & Employment Team: Vaccination Mandates: Employer Options for Mandating Vaccination Restricted

Insight | December 1, 2021

Sarah Reiner, Matthew Bowles, Scott Cole

Centers for Medicare & Medicaid Services (CMS) Rule Injunction

Pursuant to a ruling yesterday in the United States District Court for the Western District of Louisiana, a nationwide injunction has been entered prohibiting enforcement of the November 5, 2021 CMS Interim Final Rule (IFR) applicable to Medicare and Medicaid health care providers. The CMS IFR mandates that health care providers require their staff to be vaccinated against COVID-19, and also imposes significant penalties, including the potential termination of the health care provider’s Medicare/Medicaid Provider Agreement, in the event a health care provider violates the IFR – but for now its enforcement is on hold pursuant to the injunction issued on Tuesday, November 30, 2021.

In addressing the geographic scope of the injunction, the Court noted that because the IFR included the entire nation, the injunction imposed would also be nationwide due to the need for uniformity – excepting only those states already covered by an injunction previously issued in the Eastern District of Missouri on Monday, November 29, 2021. The District Court concluded by noting the U.S. Department of Health and Human Services and CMS, along with their respective personnel, are enjoined and restrained from implementing the vaccination mandate set forth in the IFR as to all health care providers, suppliers, owners, employees, and all others covered by the IFR mandate. A link to the Court’s ruling is provided here.

Florida Vaccination Mandate Law

In light of the nationwide injunction with respect to the CMS IFR, Florida health care providers should be examining and revising their COVID-19 vaccination policies to ensure compliance with recent Florida law limiting the ability of private and public employers of all sizes to impose vaccination mandates. In fact, Florida’s private and public employers operating outside the health care industry should all be engaged in this evaluation.

On Thursday, November 18, 2021, the Florida Department of Health (Department) issued Emergency Rules 64ER21-17 and 64ER21-18, which implement Fla. Stat. 381.00317 and 112.0441 respectively, both of which were recently enacted during the Florida Legislature’s 2021 Special Session B. Specifically, Fla. Stat. 381.00317 prohibits private employers from implementing COVID-19 vaccination mandates without providing the following individual exemptions to employees:

  • Medical exemption (including pregnancy or anticipated pregnancy)
  • Religious exemption
  • COVID-19 immunity exemption
  • Periodic testing exemption
  • PPE exemption

Emergency Rule 64ER21-17 identifies the foregoing exemptions and provides how an employee properly claims one of the five exemptions. Pursuant to the statute and the Emergency Rule, the Department has provided vaccine mandate exemption forms on its website for employees wishing to seek an exemption under the new law. Notably, employers are prohibited from inquiring into the veracity of an employee’s sincerely held religious belief. Indeed, the Department considers an employee exempt from an employer vaccine mandate so long as the employee properly completes one of the five exemption forms. The law provides for a $10,000 fine per violation for employers with less than 100 employees and a $50,000 fine per violation for employers with 100 or more employees.

As for Fla. Stat. 112.0441, this law prohibits public employers from implementing a COVID-19 vaccination mandate and imposes a fine of up to $5,000 for each violation. Emergency Rule 64ER21-18 provides that the Department will impose the “$5,000 fine per individual and separate violation against the [public employer].” 

Federal Contractor Vaccine Mandate

More than a dozen lawsuits have been filed in federal courts challenging the federal contractor vaccine mandate. This includes a lawsuit filed by the State of Florida in the District Court for the Middle District of Florida.  At this time, only one court has taken action. The Federal District Court for the Eastern District of Kentucky issued a temporary injunction prohibiting implementation of the mandate. This decision only applies to the states of Kentucky, Tennessee, and Ohio. However the bases of the decision, including that the mandate exceeded the Executive Branch’s authority delegated to it by the Federal Property and Administrative Services Act, and involves regulation in an area typically reserved to the states, could be a basis for similar rulings in other jurisdictions.

If you have any questions regarding the foregoing laws, or their application to you as an employer, please reach out to your GrayRobinson, P.A. labor and employment counsel for assistance.

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