Tag: Injunction

U.S. Supreme Court Lifts Preliminary Injunctions on Healthcare Worker Vaccine Mandate

On January 13, 2022, the United States Supreme Court upheld the Centers for Medicare & Medicaid Services (“CMS”) Interim Final Rule (the “Rule”) in a 5-4 decision, staying the preliminary injunctions issued for 24 states by the District Courts for the Eastern District of Missouri and the Western District of Louisiana.  Therefore, the CMS vaccine mandate is in full effect for all states except Texas, which was not part of the cases before the Court.  The Rule requires nearly all workers at Medicare- and Medicaid-certified facilities—whether medical personnel, volunteers, janitorial staff, or even contractors who service the facilities—to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption.

The Court based its holding on two main points.  First, the Court held that Congress clearly authorized CMS to put conditions on funding it provides to the Medicare and Medicaid certified facilities.  The Court opined that perhaps CMS’s “most basic” function is to ensure that regulated facilities protect the health and safety of their patients, noting that Medicare and Medicaid patients are often some of the most vulnerable to infection and death from COVID-19.  Because CMS determined that a vaccine mandate is necessary to protect patient health and safety, the Court held the mandate “fits neatly within the language of the [authorizing] statute.”  The Court acknowledged that CMS has never required vaccinations in the past, but attributed this in part to the fact that states typically already require necessary vaccinations like hepatitis B, influenza, and measles for healthcare workers.

Second, the Court held that the mandate is not arbitrary and capricious, and cautioned the district courts that their role is merely to make sure an agency acts within the “zone of reasonableness.”  The Court found the administrative record sufficient to explain CMS’s rationale for the mandate and also accepted that getting the vaccine mandate in place ahead of winter and flu season satisfied the “good cause” standard for skipping the notice and comment period.

Healthcare employers subject to the Rule should immediately start implementing vaccine requirements if they have not already.  It is anticipated that in all states but Texas, CMS will likely begin enforcement of the vaccine mandate in approximately 30 days.  On December 28, 2021, CMS released guidance to state surveyors with enforcement standards to use starting 30 days from the memo, though at the time the memo only applied to the 25 states that were not enjoined.  Healthcare employers should also keep in mind that this is not the end of the road: the Court’s holding only means that the CMS vaccine mandate is in force while the 5th and 8th Circuits complete their review of the underlying state challenges to the mandate.  While the Supreme Court’s opinion sends a strong message that lower courts should uphold the mandate, there is no guarantee they will do so.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size-fits-all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Article By Keeley A. McCarty and Ashley T. Hirano of Sheppard, Mullin, Richter & Hampton LLP

For more health law legal news, click here to visit the National Law Review.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.

Federal Court Preliminary Enjoins Enforcement of New California Arbitration Law AB 51

On Friday, January 31, 2020, Chief District Judge Kimberly J. Mueller of the federal District Court for the Eastern District of California issued a Preliminary Injunction (PI) against the State of California, enjoining the State from enforcing Assembly Bill 51 (AB 51) with respect to mandatory arbitration agreements in employment to the extent governed by the Federal Arbitration Act (FAA).1

As discussed in the Vedder Price employment law alert, TRO Halts New Arbitration Law AB 51, the District Court had previously issued a Temporary Restraining Order (TRO) on December 30, 2019 temporarily enjoining enforcement of AB 51 pending a preliminary injunction hearing scheduled for January 10, 2020. The Court subsequently continued the January 10 hearing and extended the TRO until January 31 to allow the parties time to submit supplemental briefing. AB 51, the new California law previously slated to take effect on January 1, 2020, purportedly prohibited employers from requiring applicants or employees in California to agree, as a condition of employment, continued employment, or the receipt of any employment-related benefit, to arbitrate claims involving violations of the California Fair Employment and Housing Act (FEHA) or the California Labor Code. AB 51 did not specifically mention “arbitration” but instead broadly applied to the waiver of “any right, forum, or procedure for a violation of [the FEHA or Labor Code], including the right to file and pursue a civil action.”

In issuing the PI, the District Court specifically: (a) enjoined the State from enforcing sections 432.6(a), (b), and (c) of the California Labor Code where the alleged “waiver of any right, forum, or procedure” is the entry into an arbitration agreement covered by the FAA2; and (b) enjoined the State from enforcing Section 12953 of the California Government Code [FEHA] where the alleged violation of “Section 432.6 of the Labor Code” is entering into an arbitration agreement covered by the FAA.

The PI will remain in place pending a final judgment, which would likely occur following a motion for summary judgment rather than a full trial on the merits since there are no material facts in dispute to be tried. However, pursuant to 28 U.S.C. § 1292(a)(1), an order granting a preliminary injunction is immediately appealable. Accordingly, it is likely that the State of California will file an immediate appeal directly with the 9th Circuit Court of Appeals.

In the interim, based on this PI, employers should feel comfortable in continuing to require employees in California to sign mandatory arbitration agreements as a condition of employment without being subjected to criminal prosecution under AB 51, provided that the arbitration agreement is clearly governed by the FAA. Employers are encouraged to consult with legal counsel to ensure compliance in this regard.

1 See Chamber of Commerce of U.S., et al. v. Xavier Becerra, et al., Case No. 2:19-cv-02456-KJM-DB, Dkt. No. 44 (E.D. Cal. Jan. 31, 2020).

2 Federal Arbitration Act, 9 U.S.C. §§ 1-16

© 2020 Vedder Price

For more on recent employment law litigation in California and elsewhere, see the National Law Review Labor & Employment law section.

Federal Judge Determines that California’s Immigration Law Goes Too Far

A federal district judge in California issued a preliminary injunction preventing the State of California from enforcing certain provisions of Assembly Bill (AB) 450, a state statute that, among other things, prohibits private employers from cooperating with federal immigration enforcement agencies in the absence of a judicial warrant or a subpoena. The law, which is also known as the Immigrant Worker Protection Act, went into effect on January 1, 2018. The U.S. Department of Justice (DOJ) filed a lawsuit in March 2018, alleging that AB 450, and two other California immigration statutes, preempt federal law and interfere with the government’s ability to carry out its duties.

In his July 4, 2018 order, Judge John A. Mendez discussed the difficult position of the court in balancing the federal government’s power to determine immigration law against state powers. Judge Mendez determined that three key parts of AB 450 “impermissibly infringed on the sovereignty of the United States” and discriminate against employers that voluntarily choose to work with the federal government. As a result, the judge granted the DOJ’s motion for a preliminary injunction enjoining the enforcement of the three offending provisions. The judge did, however, uphold the law’s notice requirements, finding that the rule did not interfere with the federal government’s ability to enforce immigration laws.

Impact on Employers

Until further notice, private employers in California will not be in violation of state law in the following circumstances:

  • If theemployer voluntarily consents and allows an immigration enforcement agent to enter nonpublic areas of a place of business, even if the agent does not have a warrant.
  • If the employer voluntarily provides an immigration enforcement agent with access to employee records without a subpoena or court order.
  • If the employer reverifies an employee’s eligibility to work even when not strictly required by federal statutory law.

It is important to note that the notice requirements under AB 450 were upheld and are still in effect. The law’s notice requirements are as follows.

Prior to Inspection

  • The law requires employers to notify each current employee, within 72 hours of receiving notice of an inspection, that an immigration agency will be inspecting I-9 Employment Eligibility Verification forms or other records.
  • The law requires employers to post the notice “in the language the employer normally uses to communicate employment-related information to the employee.”
  • The notice must include the following information:
  1. “The name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.
  2. The date that the employer received notice of the inspection.
  3. The nature of the inspection to the extent known.
  4. A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.”
  • The California Labor Commissioner’s Office released a template notice form to help employers comply with the posting requirements.

After Inspection

  • “Except as otherwise required by federal law, an employer shall provide to each current affected employee, and to the employee’s authorized representative, if any, a copy of the written immigration agency notice that provides the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records within 72 hours of receipt of the notice.”
  • Employers must also provide “each affected employee, and to the affected employee’s authorized representative, if any, written notice of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records.
  • This notice is required to be hand delivered directly to the affected employee at the workplace, if possible. If hand delivery is not possible, the notice must be delivered by mail and email to the employee’s email address, if known, and to the employee’s authorized representative.
  • “The notice shall contain the following information:
  1. A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee.
  2. The time period for correcting any potential deficiencies identified by the immigration agency.
  3. The time and date of any meeting with the employer to correct any identified deficiencies.
  4. Notice that the employee has the right to representation during any meeting scheduled with the employer.”

Employers that fail to provide the required notices are subject to penalties of $2,000–5,000 for a first violation and $5,000–10,000 for each subsequent violation. AB 450 does not assess penalties against employers that fail to provide notice to employees at the express request of the federal government.

 

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
More immigration news is available on the National Law Review’s Immigration Page.

Fourth Circuit Ruling Continues Star-Crossed Fate of Trump Administration Travel Ban

On May 25, 2017 the U.S. Court of Appeals for the Fourth Circuit upheld a lower court’s nationwide injunction against the Trump administration’s executive order (EO) suspending entry into the United States of foreign nationals from six designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. This ruling maintains the current status quo under which key provisions of the travel ban have been blocked. As a result, employees from the designated countries remain free to travel to and request admission into the United States.

The EO at issue in the case, “Protecting the Nation from Foreign Terrorist Entry into the United States,” is a revised version of the original executive order that had also encountered legal obstacles. Under the revised version of the executive order, the Trump administration had attempted to address some of the early objections to the original executive order by excluding certain foreign nationals from its scope, such as those who already had visas, or who were green card holders or dual nationals traveling on a passport from a non-designated country. Despite those changes, the revised EO, issued on March 6, 2017, met with challenges and legal objections similar to the original. Section 2(c) of the revised EO, “Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period,” was the central focus in this case.

While the court was not directly evaluating the constitutionality of the travel ban, the judges took a close look at the strength of the plaintiff’s Establishment Clause claim against the EO. The Establishment Clause prohibits the government from making any law respecting an establishment of religion. In defense of the EO, the administration has asserted a need to accord deference to the president’s actions taken to protect the nation’s security. The court, however, noted that the president’s authority cannot go unchecked, and included an examination of past statements made by President Donald Trump in its analysis.

Stating that the Trump administration’s travel ban was rooted more in the intent to bar Muslims from the country rather than in the government’s asserted national security interest, the court found that the public interest argued in favor of upholding the district court’s preliminary injunction.

Attorney General Jeff Sessions issued a statement confirming that the government intends to appeal the Fourth Circuit’s decision to the Supreme Court of the United States. A separate nationwide injunction against the EO is currently under appeal in the Ninth Circuit. Oral arguments were heard in that case on May 15, 2017, and a decision is pending. Because the case is still ongoing, this latest decision should not be considered a final determination of the EO’s fate.

This post was written by Jordan C. Mendez and Lowell Sachs of  Ogletree, Deakins, Nash, Smoak & Stewart, P.C.