TALLAHASSEE, Fla. – Florida has launched an appeal after a federal judge rejected a request to block a Biden administration requirement that workers at hospitals, nursing homes and other health-care providers be vaccinated against COVID-19.
Attorney General Ashley Moody’s office Tuesday filed a notice of taking the case to the 11th U.S. Circuit Court of Appeals. The move came after U.S. District Judge M. Casey Rodgers on Saturday refused to issue a preliminary injunction or temporary restraining order against the vaccination requirement.
Along with filing the notice of appeal, Moody’s office Tuesday asked Rodgers to issue an emergency injunction against the vaccination requirement while the Atlanta-based appellate court considers the case. State attorneys contend that the vaccination requirement, scheduled to take effect Dec. 6, would cause “irreparable harm,” including exacerbating health-care staffing shortages.
“What matters is that, come December 6, Florida’s facilities will need to make an impossible decision: fire unvaccinated staff or risk defying federal law and suffering the consequences,” Tuesday’s motion for an emergency injunction said.
Moody’s office filed the lawsuit Nov. 17 and sought an injunction or temporary restraining order against the vaccination rule, which was issued this month by the federal Centers for Medicare & Medicaid Services.
The rule applies to hospitals, nursing homes and other health-care providers that participate in the Medicare and Medicaid programs. Under the rule, health-care workers are required to receive at least one dose of COVID-19 vaccine by Dec. 6 and be fully vaccinated by Jan. 4, with limited exemptions for medical and religious reasons.
Rodgers, who was appointed to the federal bench by former Republican President George W. Bush, wrote in Saturday’s ruling that Florida had not shown “irreparable harm” to justify an injunction or temporary restraining order. In part, the state contended the rule would affect state-run facilities, such as veterans’ nursing homes.
“On review of the record, the court finds no adequate showing that irreparable injury will occur in the absence of a TRO (temporary restraining order) or preliminary injunction prior to December 6, 2021,” Rodgers wrote. “The affidavits (of state officials) in support of the motion include assertions of how the various agencies and institutions anticipate they may be adversely impacted by the mandate. In particular, the affidavits express opinions of agency heads who ‘estimate’ that they ‘may’ lose a certain percentage or a number of employees, or speculate as to the consequences they will suffer ‘if widespread resignations were to occur.’ However, such opinions, absent supporting factual evidence, remain speculative and may be disregarded as conclusory.”
In the lawsuit, Moody’s office alleges that the federal agency known as CMS overstepped its legal authority in issuing the requirement and did not follow proper procedures, such as consulting with states and providing notice. Also, the lawsuit contends that the requirement is “arbitrary and capricious.” Much of the lawsuit is based on alleged violations of the federal Administrative Procedure Act.
As is common, the notice of appeal filed Tuesday does not detail arguments that the state will make in trying to convince the appeals court to overturn Rodgers’ Saturday decision.
But in asking Rodgers to issue an emergency injunction while the appeal plays out, the state argued that the vaccination requirement is already causing irreparable harm. The motion cited a law passed during a special legislative session last week that is designed to prevent workers from being required to be vaccinated against COVID-19.
The motion said the federal “mandate purports to preempt state laws that bar employers from requiring employees to submit to vaccination, and Florida’s officials must violate such state laws to comply with the mandate.”
It also said harms will “occur, at latest, on December 6, when facilities, including Florida-owned- and-operated facilities, must decide between complying with Florida law or complying with the mandate,” the motion said. “And in reality, they will occur even earlier because Florida’s facilities must arrange to be compliant with the mandate by December 6.”
Because it dealt only with the state’s request for a preliminary injunction or temporary restraining order, Rodgers’ ruling Saturday did not end the lawsuit. Also, at least one other challenge has been filed by states to the health-care vaccination requirement. Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire joined together Nov. 10 to file a lawsuit in federal court in Missouri.
The vaccination requirement is set to affect hundreds of private hospitals, nursing homes and other providers in Florida, in addition to state agencies that provide health-care services. State and industry officials have repeatedly pointed to concerns about staffing shortages.
While the federal government had not filed arguments as of Wednesday morning in the Florida case, it filed a 66-page document Monday in Missouri that cited evidence of vaccinated people in health-care settings being less likely to become infected with COVID-19 and transmit it to others.
“The secretary of (the Department of) Health and Human Services (which includes CMS) reviewed this evidence and concluded that action was urgently needed to protect Medicare and Medicaid beneficiaries from the possibility that they would become infected with the virus while they receive care in facilities funded by these programs,” U.S. Department of Justice attorneys wrote. “Congress has assigned the secretary a statutory responsibility to ensure that the health and safety of patients are protected in these federally-funded facilities. He accordingly issued a rule to do so.”