CMS Vaccine Mandate Takes Effect in 26 States as Fifth Circuit Alters Scope of Nationwide Injunction

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A nationwide injunction that prevented a health care worker COVID-19 vaccine mandate from taking effect has now been narrowed by a federal appellate court to apply only in the states involved in the lawsuits against the Centers for Medicare & Medicaid Services (CMS).

As outlined in our prior alert, a federal judge in Louisiana issued a nationwide injunction on November 30, 2021. CMS appealed to the 5th Circuit, which has now upheld the injunction as to the 14 states involved in the Louisiana case but refused to extend it to states that were not involved in the lawsuit. Another 10 states were already subject to an injunction issued by a federal judge in Missouri.

The impact of the December 15 order from the 5th Circuit Court of Appeals is that the CMS vaccine mandate is currently in effect for the following 26 states: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington, and Wisconsin.

Background

On November 5, 2021, CMS published the Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule, requiring vaccination of all employees at health care facilities that participate in the Medicare and Medicaid programs, regardless of responsibility or patient contact.

The states of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming filed suit in the U.S. District Court for the Eastern District of Missouri and requested a preliminary injunction to temporarily block the implementation of the CMS vaccine mandate. U.S. District Court Judge Schelp issued the requested injunction as to those 10 states on November 29, 2021. On December 13, 2021, the 8th Circuit Court of Appeals allowed the injunction to stand.

During the same time frame, the states of Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia, filed suit in the U.S. District Court for the Western District of Louisiana and sought a preliminary injunction to temporarily block the implementation of the CMS vaccine mandate. U.S. District Court Judge Terry A. Doughtry issued an injunction that covered the 40 remaining states, not just the 14 states involved in the case.

Texas has also challenged the mandate and requested an injunction to block the enforcement of the CMS vaccine mandate in the U.S. District Court for the Northern District of Texas. There was a hearing on its motion for preliminary injunction, but the case was stayed on December 5, 2021 because of the nationwide injunction issued in the Louisiana case. Florida has also filed suit, but the Florida District Court refused to enjoin the vaccine mandate, finding a likelihood that CMS would succeed. On December 7, 2021, the 11th Circuit Court of Appeals upheld the District Court’s decision and refused to enjoin the CMS vaccine mandate.

Fifth Circuit Decision

Although the 5th Circuit enjoined the OSHA vaccine mandate, which applied to all businesses with more than 100 employees, in BST Holdings, LLC v. OSHA, it acknowledged differences between the CMS vaccine mandate and the OSHA vaccine mandate. In its December 15, 2021 decision, it noted that CMS identified “meaningful distinctions between its rule for Medicare and Medicaid-funded facilities and the broader OSHA rule — the statutory authority for the rule is different; Medicare and Medicaid were enacted under the Spending Clause rather than the Commerce Clause; and the targeted health care facilities, especially nursing homes, are where COVID-19 has posed the greatest risk.”

Nonetheless, the 5th Circuit would not say that the Secretary had made a strong showing of likely success on the merits of these arguments. As a result, it allowed the Louisiana court’s injunction to remain in place as to the 14 states that filed in Louisiana.

However, the 5th Circuit determined that in this particular case, one district court should not have made a binding judgment for the entire country. While injunctions can be binding throughout the country, not all of them should be. “The district court here gave little justification for issuing an injunction outside the 14 States that brought this suit.” The 5th Circuit also acknowledged that the states that have not brought suit “may well have accepted and even endorsed the vaccination rule” and predicted that CMS would prevail on its effort to limit the scope of the injunction.

What’s Next?

The CMS vaccine mandate is now enjoined only in the 10 states involved in the Missouri case and the 14 states involved in the Louisiana case. The CMS vaccine mandate is not enjoined in the remaining 26 states.

However, following the issuance of the two injunctions in Missouri and Louisiana, CMS issued an update to its vaccine mandate FAQs that included the following statement: “While CMS remains confident in its authority to protect the health and safety of patients in facilities funded by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation.”

We expect further guidance from CMS as to whether and how it will proceed to implement and enforce the mandate in the remaining 26 states, particularly given that the deadline for the initial vaccine has already passed. We also expect further appeals of the pending cases, and more of the 26 states not currently covered by the injunction could file lawsuits and seek injunctive relief as Texas and Florida have already done.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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