As we previously reported here, on November 30, a federal court in Louisiana issued a nationwide injunction against the CMS vaccine mandate, finding that the need for uniformity justified the nationwide scope of its ruling. In the latest bout of legal whiplash, yesterday, December 15, 2021, the Fifth Circuit overturned the Louisiana court’s nationwide injunction. The court held that one district court should not “make a binding judgment for the whole country.” Instead, “[the mandate’s] ultimate resolution will benefit from the airing of competing views in our sister circuits.”
Employers should note; however, that the Fifth Circuit upheld the stay for the fourteen Plaintiff States involved in the underlying lawsuit. These states include Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio. Healthcare employers in these states do not need to comply with the CMS vaccination obligations, at least for now.
Keep in mind that on November 29, 2021, a Missouri federal court also blocked the CMS vaccination mandate for ten states including: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. That decision still stands, though it has been appealed to the Eighth Circuit Court of Appeals.
Bottom Line
Healthcare employers in states that are not covered by one of the stays mentioned above, including Minnesota and Wisconsin, need to be aware that CMS is now in a position to move forward with enforcing its mandatory vaccination rules. On December 2, CMS temporarily suspended enforcement of the rules, but we expect to hear from CMS soon about when the rules will go into effect. As always, we will continue to monitor the situation and provide updates accordingly.