On Wednesday, the U.S. Court of Appeals for the Fifth Circuit affirmed a preliminary injunction that had been granted on November 30, temporarily blocking the vaccine mandate issued by the Centers for Medicare & Medicaid Services. However, the Fifth Circuit decided that the preliminary injunction should not apply nationwide, as the lower court had ruled, but only to the states that challenged the mandate.

The same day, a federal court in Texas granted a preliminary injunction against the CMS mandate in a legal challenge brought by the State of Texas. The Texas injunction is limited to covered employers in Texas.

The Fifth Circuit and Texas decisions, with a decision from a federal court in Missouri issued on November 29, mean that the CMS mandate is currently enjoined in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming, but in no other states.

Yesterday, the Biden Administration applied to the U.S. Supreme Court to stay the Louisiana and Missouri injunctions while it appeals those decisions to the Fifth and Eighth circuits, respectively.

Meanwhile, a federal court in Florida has denied a motion filed by the State of Florida to preliminarily enjoin the mandate, finding that the state had failed to adequately show that irreparable injury would occur if the CMS mandate were allowed to be in effect pending a final ruling from the court. That decision is on appeal to the U.S. Court of Appeals for the Eleventh Circuit, which has denied Florida’s motion for an injunction while the appeal is pending.

These lawsuits are challenging an interim final rule issued by the CMS on November 5 that required – among other things – staff working in certain Medicare/Medicaid certified facilities to obtain the first dose of a multi-dose COVID-19 vaccine or a single-dose COVID-19 vaccine by December 6 and be fully vaccinated by January 4. The CMS Rule went into effect the same day it was issued without a notice and comment period. A more detailed explanation of the CMS Rule can be found here.

Basis for the legal challenges

The plaintiff states in these lawsuits contend that the vaccine mandate was carelessly enacted as a “one-size-fits-all sledgehammer” that requires workers at covered Medicare/Medicaid facilities to choosing between their jobs and “the jabs.” The plaintiffs argue that the mandate would undermine its own stated goal of protecting patient health and safety because many health care workers would quit rather than be vaccinated. They also assert that the mandate violates various provisions of the United States Constitution, was issued in violation of the Administrative Procedure Act, and is arbitrary and capricious.

State anti-mandate mandates

As if the landscape were not confusing enough, several states have either enacted or are considering legislation that prohibits private employers from imposing vaccine mandates without making generous exceptions. These jurisdictions include Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, and Utah.

What CMS-covered health care employers should do

Given the conflicting vaccine mandate requirements under local, state, and federal law, health care employers are in limbo, especially if they operate in multiple states with inconsistent laws. Because the nationwide injunction was lifted only Wednesday – after the “effective date” of the CMS vaccination shot requirement – it is unclear what the CMS will do with respect to health care employers in states that are not subject to the current injunctions.

Meanwhile, here are some principles that may help:

  • Even in states where the CMS mandate is enjoined, covered employers or private employers are still free to impose mandatory vaccine policies on their own initiative – unless applicable state law prohibits such mandates.

  • Covered employers who operate in the states included in the current injunctions and who prefer not to mandate vaccination may suspend their efforts to comply with the CMS mandate, subject to any state or local law to the contrary. They should also be ready to comply with the CMS mandate in the event that it is reinstated by the courts.

  • All health care employers should continue to comply with the Emergency Temporary Standard issued by the Occupational Safety and Health Administration on June 21. (NOTE: the June 21 ETS should not be confused with the OSHA ETS issued on November 5, which applies to most private sector employers and is currently subject to a nationwide injunction.) The June 21 ETS requires health care employers to take specific measures that will mitigate the transmission of COVID-19 (for example, providing personal protective equipment, and paying for the cost of testing and/or time associated with waiting for test results). It does not require vaccination.  The June 21 ETS is set to expire next week, on December 21, if it has not been extended or replaced by a permanent standard.

  • CMS-covered employers should provide regular updates to employees regarding the status of the mandate, the employer’s policy, and the fact that the mandate could be reinstated at a later date.

For a printer-friendly copy, click here.


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