Phoenix, Arizona - Attorney General Mark Brnovich is continuing the fight to protect Arizona health care workers and their patients and employers from the Biden administration’s COVID-19 vaccine mandate. In a new action filed Friday, General Brnovich and 15 other attorneys general are asking a federal judge to once again block the federal government from enforcing the mandate in their respective states before it goes into effect. 

The unlawful mandate for facilities that receive Medicare or Medicaid funding from the U.S. Department of Health and Human Services is “causing havoc in the healthcare labor market” across the nation – especially in rural communities – and does not account for the pandemic’s changing circumstances.  

The filing, which is the latest in the ongoing case against President Biden’s vaccine mandate for health care workers, seeks to stop the federal government from enforcing the mandate in Arizona before the February 14 deadline by which workers at covered facilities must have received a first dose of a COVID-19 vaccine or have a pending or approved application for an exemption. 

According to data published by the AARP Public Policy Institute, nursing homes and long-term care facilities are already facing the worst shortage of nurses and/or aides since the government began collecting this information from nursing homes in May 2020. Low staffing levels in nursing homes – particularly among registered nurses – are associated with worse outcomes for residents, including more COVID-19 cases, deaths, and a higher likelihood of outbreaks. The mandate will make these problems worse. 

“By forcing healthcare workers to choose between their jobs or an experimental vaccine they do not want, CMS is affirmatively pinching an already strained workforce – and particularly so in rural areas within the States,” the lawsuit reads. 

Recognizing this workforce shortage and the untenable position in which it places covered healthcare facilities, federal guidance permits vaccinated employees who are testing positive for COVID-19 to return to work while prohibiting unvaccinated healthcare employees from working unless they obtain an exemption. 
As the milder Omicron variant now accounts for 99.9 percent of COVID-19 cases in the country, the Biden administration’s rationale for rushing the mandate without the legally required opportunity for the public to comment no longer exists. Additionally, merging research shows that standard COVID-19 vaccinations provide little protection against transmission of the Omicron variant, and federal authorities have begun to walk back prior claims about the efficacy of the vaccines against this now-dominant variant. 

Meanwhile, new guidance from the federal government issued after the U.S. Supreme Court decision imposes a brand new vaccine mandate on state employees who survey and report whether Medicare and Medicaid facilities are complying with applicable regulations, including the mandate itself. This constitutes an “independent, substantive rule, and yet CMS failed utterly to comply with the procedures required by [federal law]” yet again.

The CMS COVID-19 vaccine mandate also violates the Tenth Amendment, the Spending Clause, the Anti-Commandeering Doctrine, and the Nondelegation Doctrine. 

The case number is 3:21-cv-03970 in the U.S. District Court for the Western District of Louisiana. It is being led by Arizona, Montana, and Louisiana. The other states joining are Alabama, Georgia, Idaho, Indiana, Kentucky, Mississippi, Ohio, Oklahoma, South Carolina, Tennessee, Utah, Virginia, and West Virginia.