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As of May 30, 2022

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5th Cir. decision

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AU

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8/27/2022

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IV. Elimination of Cost Sharing for Adult Vaccines Under Part D

Summary: Beginning January 2023, cost sharing for adult vaccines covered under Part D is eliminated.
This change alters the playing field for vaccines covered under Part D vis-a-vis those covered under Part B. For years, CMS has strongly encouraged Part D plans to eliminate any cost sharing related to adult vaccines but has never required such a change. CMS will need to implement the requirement in updated regulations before the 2023 open enrollment period starting this fall. Pharmacies should pay close attention to amendments to their contracts with Part D plans, as the plans might attempt to shift these costs to cover any potential increased cost from this change in coverage.

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  • In re The Healing Healthcare 3 Inc. (N.L.R.B. 2022), No. 28-RC-296310, National Labor Relations Board (June 28, 2022)

The Employer operates a cannabis-related dispensary in Phoenix, Arizona, which provides adult recreational use and medical marijuana products for its patients and customers. Approximately 53 employees work at the Employer's Camelback location. The Employer does not require employees to be vaccinated against COVID-19. The Employer does not require its employees to disclose their vaccination status, but 32 out of the 53 have disclosed that they are vaccinated against COVID-19.[8] As of June 14, the Employer does not require employees or customers to wear masks at its facility.

...

The CDC recommends that everyone who is eligible stay up to date on their COVID-19 vaccines, everyone ages two-years and older should wear a well-fitting mask indoors in public areas where the COVID-19 community level is high regardless of vaccination status, and that those not up to date on their COVID-19 vaccines should stay at least six-feet away from other people while indoors in public spaces.

...

The Employer also argues that almost 60% of its workforce is vaccinated and it is unlikely that Maricopa County's high positivity rates would impact the employees gathering for an election. Again, I am not persuaded by this argument. Although a 60% vaccination rate is the majority of the employees, this still leaves 40% that are not vaccinated, which is significant.

...

After careful examination of the record, the parties' respective positions, and the current state of the COVID-19 virus in Maricopa County, Arizona, I find that the COVID-19 pandemic presents an extraordinary circumstance that makes conducting a mail ballot election the most responsible and appropriate method to determine the unit employees' union representation preferences at this time.


  • Florida: Florida Legislation Authorizing Pharmacy Technicians to Administer Vaccines Contains Some Surprises, Martin R. Dix, Akerman Health Law Rx (July 28, 2022):
    • Per Chapter 2022-60, Laws of Florida "pharmacy technicians will be allowed to administer all of the vaccines listed by the CDC in the Adult Immunization Schedule or recommended by the CDC for international travel, as well as any vaccines authorized by the FDA under an emergency use authorization or by the Florida Board of Pharmacy in response to a state of emergency declared by the Governor".


  • WVC-referred - Saad V. Omer, Director of Yale Institute for Global Health
  • Speaks v. Health Sys. Mgmt., Civil Action No. 5:22-CV-00077-KDB-DCK (W.D. N.C., August 17, 2022)
    • "the Court need only address the narrow issue of whether Ms. Speaks, who is appearing pro se, may maintain her ADA claims against the Company. As explained below, because the Court finds that she has not sufficiently alleged that she has a disability within the meaning of the ADA simply because her employer implemented a COVID-19 policy requiring vaccination and she chose not to become vaccinated or seek an exemption, the Court concludes her claims must be dismissed".
    • "Only the first element of Speaks' prima facie case, whether she was disabled within the meaning of the ADA, is contested here. According to the Company, the fact that Speaks - like all their other employees - was required to be vaccinated or that she refused to become vaccinated are insufficient to show that she was disabled under the meaning of the ADA. The Court agrees."
  • Michelle S. Strowhiro, Lindsay Ditlow, Priya Singh, MONKEYPOX IN THE WORKPLACE: KEY CONSIDERATIONS FOR EMPLOYERS (JULY 28, 2022)
    • "Employers should consider updating their current pandemic safety policies to include information about monkeypox, including how the virus is spread and its symptoms".
    • "Monkeypox is genetically similar to smallpox; thus, it is currently believed that smallpox vaccines can be used to provide some protection against monkeypox. The CDC recommends vaccination for people exposed to monkeypox and those at higher risk of exposure".

9/30/2022

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  • Maxwell v. CVS, Pharm., No. 3:21-cv-330 (S.D. Tex., Sept. 29, 2022)). Plaingtiff makes multiple vaccine appointments trying to get a pharmacy to offer the vaccine without warning of the risks. Every time, he is given a VIS, and then leaves without getting the shot. He sues anyway, asserting that the VIS doesn't actually convey the risks. Dismissed for lack of standing because he never got the vaccine, and never intends to.
  • Huerta v. Covina Care Ctr., No. 2:21-cv-07055-FLA (SKx) (C.D. Cal., Sept. 29, 2022).

    On January 14, 2021, Covina Care Center called Huerta to request authorization to administer a COVID-19 vaccine to Decedent. Id. ¶ 28. Huerta refused to provide authorization until he could consult with Decedent's physician regarding her ability to receive the vaccine given her medical conditions. Id. Shortly thereafter, without obtaining consent, Covina Care Center administered the COVID-19 vaccine to Decedent. Id. ¶ 29. ... Plaintiff believes Decedent passed away due to complications from the COVID-19 vaccinations. See id.

    In Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 688 (9th Cir. 2022), the Ninth Circuit concluded “the PREP Act is not a complete preemption statute,” explaining “[t]he text of the statute shows that Congress intended a federal claim only for willful misconduct claims and not claims for negligence and recklessness.” Applying the two-part test articulated in City of Oakland, 969 F.3d at 906, the Ninth Circuit found that “the PREP Act neither shows the intent of Congress to displace . non-willful misconduct claims . related to the public health emergency, nor does it provide substitute causes of action for [such] claims.” Saldana, 27 F.4th at 688. ... Accordingly, the court finds the PREP Act does not completely preempt Plaintiff's state-law claims. Defendant's theory of federal question jurisdiction on this basis fails.

    For the foregoing reasons, the court GRANTS Plaintiff's Motion to Remand (Dkt. 7), and REMANDS the action to the Los Angeles Superior Court.
  • Does v. Bd. of Regents of the Univ. of Colo., Civil Action No. 21-cv-02637-RM-KMT (D. Colo., Sept. 29, 2022).

    Plaintiffs are current and former employees and students of the University of Colorado Anschutz Medical Campus who allege Defendants violated their rights by denying their requests for religious exemptions from the University's Covid-19 vaccination requirement. ...

    Plaintiffs concede Defendant Board of Regents “is generally immune under the Eleventh Amendment from [their] First Amendment claims” (ECF No. 81 at 10) and raise no argument with respect to their other constitutional claims. Instead, they argue that the ADA abrogates sovereign immunity in the context of this case. As discussed below, Plaintiffs have failed to state an ADA claim in their Complaint. Therefore, the Court finds Plaintiffs' claims against Defendant Board of Regents are barred by sovereign immunity. ...

    For the reasons stated in its Order denying injunctive relief, the Court has little trouble concluding that the amended policy is neutral on its face and as applied to Plaintiffs. (See ECF No. 65 at 7-9.) The fact that it includes a religious exemption for employees but not for students does not make it not generally applicable because the risks posed employees and students are not equivalent. See Doe, 19 F.4th at 1178-80. The Court further concludes that the policy easily satisfies rational basis review, which requires the University to have chosen a means for addressing a legitimate goal that is rationally related to achieving that goal. See Kane v. De Blasio, 19 F.4th 152, 166 (2nd Cir. 2021); We The Patriots, 17 F.4th at 290 (“The Vaccine Mandate plainly satisfies this [rational basis] standard.”). Plaintiffs' allegations fall well short of establishing that enforcing the amended policy would have appeared unlawful to a reasonable official.

    To establish a prima facie case of disability discrimination under the ADA, a plaintiff must demonstrate that she (1) is a disabled person as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) suffered discrimination by an employer or prospective employer because of that disability. E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1037-38 (10th Cir. 2011). An individual is considered disabled under the ADA if she has “a physical or mental impairment that substantially limits one or more major life activities,” has “a record of such an impairment,” or is “regarded as having such an impairment.” 42 U.S.C. § 12102(1). An individual meets the third requirement if she establishes that she has been subject to discrimination “because of an actual or perceived physical impairment.” § 12102(3)(A). To show “discrimination,” the plaintiff must establish that she has suffered an adverse employment action because of her disability. C.R. England, 644 F.3d at 1038.

    Plaintiffs' ADA claim is premised on the novel legal theory that they are “disabled” because they are regarded as having a disability due to their “absence of Covid-vaccination generated antibodies.” (ECF No. 30, ¶ 253.) Plaintiffs do not cite, nor is the Court aware of, any authority that might have placed Defendants on notice that enforcing the vaccination policies could violate Plaintiffs' rights under the ADA, or that such a claim is viable under the ADA. Nor does the Complaint contain non-conclusory allegations that Plaintiffs were regarded has having a disability or that they suffered any adverse employment action because of such disability. Accordingly, the Court finds that these Defendants did not violate Plaintiffs' clearly established rights. The Court further finds that Plaintiffs are entitled to qualified immunity because Plaintiffs have failed to plead an underlying violation of the ADA.
  • Somos v. Classic MS LLC, No. 1:22 CV1081 (N.D. Ohio 2022).

    Plaintiff alleges employment discrimination, and in support, he cites to the Americans with Disabilities Act of 1990 (“ADA”) and Title VII of the Civil Rights Act of 1964. Plaintiff contends that Classic's use of a religious exemption form that required medical history information was not “explicitly required for a job duty or business need” and was therefore a violation of the ADA. Plaintiff also alleges that Classic “rejected Plaintiff's religious exemption letter in contradiction to Title VII of the Civil Rights Act of 1964.” (Id. at 7). ...

    Plaintiff, however, has failed to allege any facts that, if believed, would support an ADA claim. Importantly, he has failed to allege that he is an individual with a disability, which is a prerequisite to demonstrating that he is qualified for protection under the ADA. See Alessio v. United Airlines, Inc., No. 5:17-cv-01426,2018 U.S. Dist. LEXIS 197834, at *6(N.D. Ohio Nov. 20,2018). This failure, alone, is fatal to his claim. See, e.g, Currie v. Cleveland Metro. Sch. Dist., No. 1:15 CV 262,2015 U.S. Dist. LEXIS 87311,2015 WL 4080159, at *4 (N.D. Ohio July 6,2015) (dismissing Pro se complaint, noting “[a] complaint alleging an ADA violation is properly dismissed for failure to identify a disability”). ...

    Here, Plaintiff has failed to allege sufficient facts supporting a plausible religious discrimination claim. First, Plaintiff fails to allege any facts of direct religious discrimination. Direct evidence is “that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.” Johnson, 319 F.3d at 865 (citing Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)). Such evidence “does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group.” Id. Plaintiff has presented no such evidence.

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