Blog Archives

Courts Grant Preliminary Injunctions Placing CMS Interim Final Rule on Hold

As we previously reported, the Centers for Medicare and Medicaid Services’ (CMS) interim final rule (“the Rule”) requiring full COVID-19 vaccination for staff and others at Medicare- and Medicaid-certified providers and suppliers (i.e., the “vaccine mandate”) has been challenged in the U.S. District Courts for the Eastern District of Missouri (“the Missouri Court”) and the Western District of Louisiana, Monroe Division (“the Louisiana Court”).  As of the date of this writing, both Courts have granted preliminary injunctions placing the Rule on hold.

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Video: CMS Vaccine Rule for Health Care Workers – Employment Law This Week

As featured in #WorkforceWednesdayThe Centers for Medicare & Medicaid Services (CMS) issued an interim final rule outlining vaccine requirements for staff at Medicare- and Medicaid-certified providers and suppliers.

Attorney Frank Morris discusses the next steps for health care providers. In addition, covered employers should continue to monitor the recent litigation filed in the Eastern District of Missouri and the Western District of Louisiana seeking to permanently enjoin the CMS interim final rule.

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CMS Interim Final Rule Challenged – Stay Tuned

As we previously reported, effective November 5, 2021, the Centers for Medicare and Medicaid Services (CMS) issued an interim final rule (the Rule) requiring full COVID-19 vaccination for staff and others at Medicare- and Medicaid-certified providers and suppliers as a Condition of Participation by January 4, 2022.

On November 10, 2021, a coalition of ten states lodged a complaint in the U.S. District Court for the Eastern District of Missouri (the “First Complaint”), which is subject to appeals in the U.S. Court of Appeals for the Eighth Circuit, seeking to set aside the Rule. On November 17, 2021, the U.S. District Court for the Eastern District of Missouri granted Plaintiff’s Motion to Expedite Briefing — requiring Defendant to file their response to the Plaintiffs’ Motion for Preliminary Injunction by November 22, 2021; and Plaintiffs to file their reply by November 23, 2021.

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New York Issues Emergency Regulation Mandating COVID-19 Vaccination for Health Care Personnel

On August 26, 2021, the Public Health and Health Planning Council approved an emergency regulation requiring health care personnel to be fully vaccinated against COVID-19. The emergency regulation is effective immediately and will remain in effect for 90 days, subject to review and renewal.

The emergency regulation supersedes the Section 16 Order issued by the New York Department of Health (“DOH”) on August 18, 2021, which mandated the vaccine for personnel at general hospitals and nursing homes.

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New Jersey Mandates COVID-19 Vaccination or Weekly Testing for Workers in Health Care and Congregate Settings

Our colleague Denise Dadika and Alexandria Adkins of Epstein Becker Green have a new post on the Workforce Bulletin blog that will be of interest to our readers: “New Jersey Mandates COVID-19 Vaccination or Weekly Testing for Workers in Health Care and Congregate Settings.”

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California’s New COVID-19 Vaccine (Non)Mandate and Testing Requirements

Our colleagues Adam C. Abrahms and Juan Larios of Epstein Becker Green recently published an Act Now Advisory that will be of interest to our readers: “California’s New COVID-19 Vaccine (Non)Mandate and Testing Requirements.”

The following is an excerpt:

On July 26, 2021, the California Department of Public Health (“CDPH”) issued a State Public Health Officer Order (“Order”) seeking to address the increase California is experiencing in positive COVID-19 cases. With infections of the COVID-19 Delta variant rising, Governor Gavin Newsom and State Public Health Officer Tomás Aragón issued the Order as an effort to reduce COVID-19 infections in California. However, contrary to some press reports, the Order is not really a vaccine mandate in any way, shape, or form. As this Advisory describes in detail, in addition to a separate order for employees of the state, the Order applies to certain categories of health care and high-risk facilities, requires verification of workers’ vaccination status and compliance with masking guidelines, and imposes requirements for testing unvaccinated and incompletely vaccinated workers.

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Federal Court Affirms Hospital’s Mandatory COVID-19 Vaccination Policy

On June 12, 2021, a federal District Court in Texas soundly rejected an attempt by Houston medical workers to challenge the legality of their employer’s decision to require that all employees receive a COVID-19 vaccine. In the lawsuit, Bridges, et al. v. Houston Methodist Hospital et al., 117 hospital workers sued for an injunction to block the hospital’s mandatory vaccination policy as well as the termination of any employee unwilling to comply with the employer’s mandate that all employees be vaccinated against COVID-19. More specifically, the employees asserted that the vaccine mandate would result in wrongful termination in violation of the public policy of the state of Texas and federal law.

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Fertility Treatments and Gestational Surrogacy: the IRS Reaffirms Narrow View of “Medical Expenses” under Section 213

As employers are expanding their fertility, surrogacy, and family planning benefits, the tax treatment of such benefits continues to be a challenge for employers and their employees by both increasing the cost of these benefits and creating administrative hurdles. In a private letter ruling, the IRS maintains its position that the majority of the medical costs and fees incurred by a same-sex couple seeking to have a child through gestational surrogacy are not deductible “medical expenses” under Section 213 of the Internal Revenue Code. On January 12, 2021, the IRS issued Private Letter Ruling 202114001 (the “Ruling”) in response to a male couple’s request for a ruling that would allow a deduction for costs and fees related to:

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EEOC Updates Guidance on COVID-19 Vaccination Policies, Including Mandates, Incentives, and Accommodations

Our colleagues Susan Gross Sholinsky, Lauri F. Rasnick, Jennifer Barna, Gretchen Harders, Nathaniel M. Glasser, and Nancy Gunzenhauser Popper of Epstein Becker Green have recently published an Act Now Advisory that will be of interest to our readers: “EEOC Updates Guidance on COVID-19 Vaccination Policies, Including Mandates, Incentives, and Accommodations.”

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Podcast: Health Care Employers: Whistleblowing, Retaliation Risks Are On the Rise – Diagnosing Health Care

In this episode of the Diagnosing Health Care Podcast:  Since the start of the COVID-19 pandemic, many jurisdictions have enacted protections from COVID-19-related liability claims through legislation and executive orders. These liability shields, however, may give health care businesses a false sense of security and offer little protection when it comes to employment claims.

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