VACCINATION MANDATE PLANNING

Employers continue to grapple with state and federal legislation on COVID-19 vaccinations. The U.S. Court of Appeals for the First Circuit has given some clarity to Maine’s healthcare employers when it declined to block the state’s emergency rule requiring all healthcare workers to be vaccinated, despite the rule’s lack of a religious exemption. The U.S. Supreme Court rejected an emergency appeal of the ruling, and the Maine healthcare mandate went into effect.

Now, the Centers for Medicare & Medicaid Services (CMS) introduced an interim final rule that requires all eligible healthcare employees at covered healthcare facilities to obtain a COVID-19 vaccination. Unlike the Maine healthcare mandate, the CMS interim final rule allows for religious exemptions. Because the CMS rule preempts any state or local law that contradicts or prevents the implementation of the interim rule, Maine announced it is reviewing the federal rule

Maine’s Center for Disease Control and Prevention (Maine CDC) and Maine HHS issued an emergency rule requiring all on-site healthcare workers to be vaccinated against COVID-19, unless they qualify for a medical exemption. A group of unvaccinated healthcare employees asked the U.S. District Court in Maine to stop the Maine healthcare mandate from taking effect. They argued the mandate violates their constitutional rights because it lacks a religious exemption. A Maine federal judge rejected the group’s arguments.

The group appealed to the First Circuit. On appeal, they argued the Maine healthcare mandate violates their constitutional rights under the Free Exercise Clause and Equal Protection Clause, and under the Civil Rights Act of 1964 because it contains a medical exemption but not a religious exemption. They claimed their sincerely held religious beliefs prevent them from being vaccinated with any of the FDA-approved vaccines.

The First Circuit affirmed the lower court’s denial of a stay, finding they were unlikely to succeed on the merits. It rejected their Free Exercise claims on three primary bases.

First, it found the Maine healthcare mandate is religiously neutral because it does not allow religious exemptions or exemptions based on philosophical beliefs. Therefore, the Maine healthcare mandate does not single out religious objections to the vaccination because of their religious nature.

Second, it concluded the Maine healthcare mandate is generally applicable because it applies equally to all religious and philosophical beliefs and does not require the government to exercise discretion in evaluating religious or philosophical exemption requests. The court also found that the medical exemption, unlike the religious exemption, furthers Maine’s articulated interests in: (1) ensuring that healthcare workers remain healthy and able to provide the needed care to an overburdened healthcare system, (2) protecting the health of those in the state most vulnerable to the virus (including those who cannot be vaccinated for medical reasons), and (3) protecting all Mainers’ health and safety.

Third, it found the Maine healthcare mandate is rationally related to and achieves the legitimate government interest of protecting public health against a deadly virus, and that it is narrowly tailored to achieve that compelling interest.

The court also rejected a request for an injunction under the Civil Rights Act for two primary reasons.

First, it found appellants could not establish that they had inadequate remedies at law because any injury from employment termination could be remedied by money damages.

Second, it concluded that appellants failed to prove a likelihood of success on the merits because providing a religious exemption to the Maine healthcare mandate could cause the hospitals to suffer undue hardship, including the risk of spreading COVID-19 in the workplace.

Finally, for all of appellants’ claims, the court found that appellants failed to prove entitlement to a preliminary injunction because, among other things, the balancing of equities weighed in favor of Maine’s “interest in safeguarding its residents” and issuing an injunction would not serve the public interest.

A later the workers filed an emergency application for review with the Supreme Court. They asked the Supreme Court to enjoin the Maine healthcare mandate from taking effect pending their filing of a petition. The Supreme Court denied the application in a 6-3 decision.

This is the third time the Supreme Court declined to block a COVID-19 vaccination mandate, but it is the first time the court addressed a COVID-19 vaccination mandate that lacks a religious exemption. While it is the first time the court has addressed this specific issue, it will not be the last.

WHAT ABOUT PREEMPTION?

Although the Maine healthcare mandate escaped Supreme Court review (for now), the mandate’s lack of religious exemption may place it at risk of preemption. CMS has introduced an interim final rule that requires all eligible healthcare employees at covered healthcare facilities to be fully vaccinated against COVID-19 by 4 January 2022. CMS’ interim final rule recognizes exemptions for medical conditions or disabilities and sincerely held religious beliefs. It preempts any state or local law that contradicts or prevents the implementation of the interim rule by providing broader exemptions than federal law or being inconsistent with the federal rule.

WHAT DOES THIS MEAN?

Employers subject to vaccination mandates should consider taking the following steps so they are prepared to implement vaccination mandates and respond to employee concerns as soon as decisions on mandate enforceability are made:

• Plan to implement clear, unambiguous, and uniform policies to protect the health and safety of the workplace while adhering to state and federal guidance;

• Prepare transparent and consistent guidelines for reviewing and processing accommodations and exemptions;

• Develop a confidential system to begin confirming and documenting employees’ vaccination status;

• Inform employees about any new developments in COVID-19 safety measures and what is expected of them to continue working; and

• Educate employees about vaccination.