The Centers for Medicare and Medicaid Services (“CMS”) issued a nationwide suspension of its vaccine mandate for health care workers.  CMS’s decision comes after two District Courts issued preliminary injunctions pausing implementation of the rule.

On December 2, 2021, CMS announced that it “will not enforce the new rule regarding vaccination of health care workers or requirements for policies and procedures in certified Medicare/Medicaid providers and suppliers…while there are court-ordered injunctions in place prohibiting enforcement of this provision.”

On November 10, 2021, Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming challenged the CMS vaccine mandate in the U.S. District Court for the Eastern District of Missouri. The Missouri District Court granted the preliminary injunction and halted the implementation of the vaccine mandate.

The U.S. District Court for the Eastern District of Missouri held that the plaintiffs were likely to succeed in their arguments that CMS exceeded its congressional-delegated authority, improperly bypassed the notice-and-comment requirements and that the vaccine mandate is arbitrary and capricious.  See McLane Middleton’s blog post: CMS Vaccine Mandate Halted in New Hampshire for more information on this order.

On November 15, 2021, Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, South Carolina, Utah, and West Virginia filed for preliminary injunction in the U.S. District Court the Western District of Louisiana.  Like the Missouri District Court, the U.S. District Court for the Western District of Louisiana also granted the preliminary injunction on similar grounds.  However, the critical difference between the orders is that the Western District of Louisiana ordered a nationwide injunction, excluding the ten states already subject to the Eastern District of Missouri’s order.  Thus, the two orders combined enjoin the vaccine mandate nationwide.

CMS stated in the memorandum that it has appealed both decisions, the State of Missouri, et al. v. Biden to the U.S. Court of Appeals for the Eighth Circuit, and the State of Louisiana, et al. v. Becerra to the U.S. Court of Appeals for the Fifth Circuit.  CMS has also filed motions of stays for the orders.  According to the Eighth Circuit’s briefing schedule, CMS’s appellate brief is due by January 10, 2022, a week after the original effective deadline of January 4, 2022.

These court rulings are part of a series of litigation challenges to vaccine mandates issued by the federal government. First, the Fifth Circuit blocked OSHA’s Emergency Temporary Standard for Employers with 100+ employees. Most recently, the United States District Court for the Southern District of Georgia stayed the federal contractor vaccine mandate nationwide.

Employers should continue to monitor developments in this ever-changing area, as the courts could temporarily lift the injunctions at any time.  McLane Middleton is closely following these cases and will provide breaking updates.