State urges appeals court to act on health worker shots

Saying it is among states that are “unshielded,” Florida is pressing a full federal appeals court to at least temporarily block a Biden administration rule that would require health care workers to be vaccinated against COVID-19.

David Costello, an assistant state solicitor general, filed a document late Wednesday afternoon at the 11th U.S. Circuit Court of Appeal pointing to a new Biden administration directive about moving forward with the vaccination requirement. The directive would apply to Florida and other states that have not received preliminary injunctions against the requirement.

The U.S. Supreme Court is scheduled to hear arguments Jan. 7 in cases from other parts of the country about the legality of the requirement, but it is not clear when justices will rule.

Pensacola-based U.S. District Judge Casey Rodgers last month rejected Florida’s request for a preliminary injunction against the rule, and a panel of the 11th U.S. Circuit Court of Appeals also refused to halt it.

Florida on Dec. 16 filed a petition asking the full Atlanta-based appeals court to issue an injunction that at least would put the rule on hold while an underlying appeal is decided — a move known as seeking an “injunction pending appeal.” But the appeals court had not acted on the petition as of Thursday morning.

In the document filed Wednesday, Costello said the new Biden administrative directive would give 30 days for compliance in Florida and about two dozen other states that do not have injunctions. It said the “new enforcement memorandum underscores the need for the en banc (full) court’s expeditious intervention.”

“Facilities in unprotected states now have just 30 days to ensure that 100% of their staff have received at least one vaccine dose,” Costello wrote. “If the facilities refuse to comply, they will ultimately face enforcement action, ranging from financial penalties to funding freezes to outright termination of their Medicare and Medicaid provider agreements.”

The vaccination requirement, issued in early November, would apply to workers at hospitals, nursing homes and other health care providers that participate in the Medicare and Medicaid programs. The requirement was initially scheduled to take effect Dec. 6, but the Biden administration suspended it because of injunctions issued in Louisiana and Missouri cases.

But the directive issued Tuesday by the federal Centers for Medicare & Medicaid Services indicates that the federal government will start enforcing the requirement where it can. It gives 30 days for health care workers to have at least one dose of vaccine and 60 days to have two doses, according to a copy attached to the document filed by Costello.

“These changes are necessary to protect the health and safety of patients and staff during the COVID-19 public health emergency,” the federal memorandum said. “The COVID-19 vaccination requirements and policies and procedures … must comply with applicable federal non-discrimination and civil rights laws and protections, including providing reasonable accommodations to individuals who are legally entitled to them because they have a disability or sincerely held religious beliefs, practices, or observations that conflict with the vaccination requirement.”

A federal district judge in Louisiana initially issued a nationwide injunction against the vaccination requirement, but the 5th U.S. Circuit Court of Appeals this month said that decision went too far. The New Orleans-based appellate court scaled back the injunction to apply only to 14 states that filed the case in Louisiana.

That effectively left Florida without an injunction against the requirement.

Florida Attorney General Attorney Ashley Moody’s office argued in the Dec. 16 petition seeking a hearing at the full appeals court that the rule violates federal laws and would worsen staffing problems at health care facilities, including state-run facilities such as veterans’ nursing homes.

“A vaccine mandate threatens to exacerbate these grim circumstances,” the petition said. “Officials at state-run health care facilities expect that many health care workers would resign rather than vaccinate.”

But Rodgers, the Pensacola-based district judge, and a majority of the three-judge panel of the appeals court rejected the state’s calls to halt the requirement.

The appellate panel majority, made up of Judges Robin Rosenbaum and Jill Pryor, pointed to justification for the rule as the nation continues struggling with the pandemic. The opinion said U.S. Department of Health and Human Services Secretary Xavier Becerra, who oversees the Centers for Medicare & Medicaid Services, considered issues such as whether the vaccination requirement would cause health care workers to leave jobs.

“Even though many health care workers have been vaccinated against COVID-19, the secretary found that vaccination rates remain too low at many health care facilities,” the opinion said. “Unvaccinated staff continue to pose a significant threat to patients because the virus that causes COVID-19 is highly transmissible and dangerous. The secretary cited data reflecting that the virus spreads readily among health care workers and from health care workers to patients and that such spread is more likely when health care workers are unvaccinated.”

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