As we previously reported, on Monday, a federal judge in Missouri enjoined the Centers for Medicare and Medicaid Services (“CMS”) from enforcing its COVID-19 vaccine mandate for healthcare workers, 86 Fed. Reg. 61,555 (Nov. 5, 2021). The Missouri court, however, limited the application of its injunction to states that had challenged the rule (i.e., Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire).
On November 30, a federal court in Louisiana also concluded that the CMS vaccine mandate was legally suspect. The Louisiana court, however, did not limit the geographic scope of its injunction. Instead, it reasoned that “due to the nationwide scope of the CMS Mandate, a nationwide injunction is necessary due to the need for uniformity.”
In its order, the Louisiana court made clear that HHS and CMS are enjoined from enforcing the CMS vaccinate mandate, 86 Fed. Reg. 61,555 (Nov. 5, 2021), pending further order from the court or an appeal to the Fifth Circuit (or, ultimately, the Supreme Court):
For the reasons set forth in this Court’s ruling, Plaintiff States’ Motion for Preliminary Injunction [Doc. No. 2] is GRANTED. Therefore, the U.S. Department of Health and Human Services and the Center for Medicare and Medicaid Services, along with their directors, employees, Administrators and Secretaries are hereby ENJOINED and RESTRAINED from implementing the CMS Mandate set forth in 86 Fed. Reg. 61555-01 (November 5, 2021) as to all healthcare providers, suppliers, owners, employees, and all others covered by said CMS Mandate.
The Louisiana court acknowledged that federal appeals courts would have the final say on the matter. However, the court noted that “it is important to preserve the status quo in this case.”
So What Next?
CMS will undoubtedly appeal the decision to the Fifth Circuit and, eventually, to the Supreme Court. In the near term, however, the Louisiana court’s decision gives covered healthcare employers some flexibility in how they wish to proceed.
First, to be clear, healthcare employers wishing to proceed with a mandatory vaccination policy have the right to do so (even in the absence of the CMS mandate). Indeed, before the CMS mandate, courts consistently upheld mandatory vaccination policies, provided that the employer accommodates those with sincerely-held religious beliefs or medical contraindications.
Second, for healthcare employers who were scrambling to meet the CMS deadline of December 6 for having nearly all workers receive at least the first dose of the COVID-19 vaccine (or have requested an exemption), they will likely not be required to remove workers who have not met these requirements by Monday. Stated differently, the Louisiana court’s injunction would likely prevent CMS from faulting the employer for failing to comply with the CMS Mandate by December 6.
Finally, does this mean healthcare employers should abandon their COVID-19 vaccine mandates? Certainly not. Employers should be aware that CMS will invariably appeal and, at any time, an appellate court could lift the injunction. Employers who have already enacted their own policies could simply proceed with them if the CMS mandate remains in place. Again, the court’s injunction is directed at CMS, so the agency is prevented from enforcing its vaccine mandate against healthcare employers.
Bottom Line
While it will take time for the dust to settle, the decision does not impact healthcare employers who have already implemented a COVID-19 vaccine mandate and who were planning to do so regardless of the CMS mandate. For those employers who implemented the mandate only because of the CMS rule, they will likely have additional time to comply while CMS appeals the court’s decision, but they should not assume that the mandate will not go into effect. Indeed, after CMS appeals the decision, the injunction could be lifted at any time.
We will continue to monitor this situation as it develops.