The attorneys general of 16 states resumed their legal battle against the Biden administration’s COVID-19 vaccine mandate for healthcare workers, writing Friday in a second amended lawsuit that “the situation has changed” with the rise of the highly infectious, but more vaccine-resistant, omicron variant.
In the time since their first challenge was filed and eventually rejected by a split Supreme Court, the states said that the delta variant specifically cited by the federal government in its interim final rule was supplanted by the “milder” omicron variant.
The Centers for Disease Control and Prevention (CDC) has reported that the three currently authorized COVID-19 vaccines are less effective in preventing COVID-19 infection with the omicron variant, the attorneys general wrote in the filing, while public health leaders including Anthony Fauci, M.D., have publicly suggested that the variant “will ultimately find just about everybody” regardless of vaccination and subsequent booster status.
Additionally, surveillance data show that individuals who are infected with the omicron variant are less likely to experience severe illness and hospitalization than those infected with the delta variant, they wrote.
“Simply put, the situation has changed. And that reveals a fundamental, structural defect in the rule—its one-size-fits-all approach doesn’t account for developing data and circumstances,” the states wrote in the second amended filing.
The CDC and other health authorities have continued to urge the public to seek out vaccines and boosters throughout the omicron wave, pointing to data indicating that vaccines and boosters still offer some protection against infection and substantially reduce an individual’s risk of hospitalization. These characteristics of the omicron variant and the authorized COVID-19 vaccines were not described in Friday's amended filing.
Rather, the states bolstered their argument by reiterating prior warnings that implementation of the vaccine requirement would further jeopardize a strained healthcare labor market. Hospitals and other settings are so understaffed that the Department Health and Human Services (HHS) published guidance in January permitting asymptomatic staff with positive COVID-19 test results to return to work, the attorneys general wrote.
Additionally, they said that recently published Centers for Medicare & Medicaid Services (CMS) guidance on vaccination expectations places “the burden to implement this labyrinth of irrational rules” on state surveyors, who they wrote would also need to be vaccinated to conduct their assessments.
RELATED: CMS may now enforce its COVID-19 vaccination policy for healthcare workers in all 50 states
“The federal government has now made clear that it expects the states to implement this flawed policy with state employees,” Louisiana Attorney General Jeff Landry said in a Friday press release. “So I will continue fighting this ill-advised invasion of individual autonomy and my state’s rights.”
The amended lawsuit was filed in the same Louisiana district court that had granted the states a preliminary injunction against CMS’ interim final rule late last year. The Biden administration challenged that injunction and another shortly after, kicking off a legal battle that eventually made its way to a divided Supreme Court.
Signing onto the new amended lawsuit were the attorneys general of Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Kentucky, Mississippi, Ohio, Oklahoma, South Carolina, Tennessee, Utah, Virginia and West Virginia.
Most of those states face a Feb. 14 deadline for healthcare workers to receive their first dose of a COVID-19 vaccine. Two states, Tennessee and Virginia, have already passed their Jan. 27 first-dose deadline.
RELATED: Unvaccinated 23 times more likely than boosted to be hospitalized during omicron wave
CMS’ COVID-19 vaccine requirement applies to roughly 10.4 million healthcare workers at 76,000 medical facilities, according to the Biden administration.
The mandate is broadly supported by national healthcare industry groups and professional organizations as a “common-sense” measure to limit COVID-19 transmission, although some individual facilities and the nursing home/assisted living industry groups worried the requirement would worsen an ongoing labor shortage.
Those staffing challenges were cited last week by the governors of West Virginia and Virginia, both of whom pleaded with the Biden administration to relax or postpone the mandate “to protect our most vulnerable healthcare systems and facilities from a staffing breakdown.” Both states are signed on to Friday’s amended filing.