Update: CMS Interim Final Rule Stay Lifted Nationwide, Still in Effect in Twenty-Four Plaintiff States

As we previously reported, the Centers for Medicare & Medicaid Services' (CMS's) interim final rule (the “Rule”) requiring full COVID-19 vaccination for staff and others at Medicare- and Medicaid-certified providers and suppliers (i.e., the “vaccine mandate”) was effectively stayed nationwide on November 30, 2021, by the U.S. District Court for the Western District of Louisiana (the “Louisiana Court”).  In yet another twist to the ongoing legal battles, the U.S. Court of Appeals for the Fifth Circuit lifted the nationwide stay and held that the Louisiana Court only had authority to block the vaccine mandate in the fourteen plaintiff states that brought suit in that court. Those states are Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia.

Due to the litigation in the Eastern District of Missouri, as reported here, enforcement of the vaccine mandate is also blocked in ten other states:  Alaska, Arkansas, Kansas, Iowa, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.  In total, the vaccine mandate under the Rule is now stayed in twenty-four states, but is now in effect in the remaining twenty-six states.

The Fifth Circuit considered whether one district court—the Louisiana Court—had authority to issue an injunction with nationwide force and effect.  Although nationwide injunctions have sometimes been granted in the past by district courts, the Fifth Circuit found that the Louisiana Court did not provide enough justification to issue an injunction applicable outside of the fourteen plaintiff states listed in the complaint and concluded that the government is likely to prevail on limiting the scope of a nationwide injunction.  Instead, because the Rule is being litigated across the country, the Fifth Circuit found that it is important to gather all views as to the Rule’s validity and, thus, limited the reach of the injunction.

It is clearly possible, if not likely, that suits may be filed challenging the Rule in the twenty-six states not covered by one of the current stays, and facilities covered by the Rule in those states should monitor any such new litigation, as we will be doing.  The Biden administration, however, has lodged a pair of applications to the U.S. Supreme Court seeking to stay the preliminary injunctions issued by the Louisiana and Missouri courts.

Facilities covered under the Rule’s mandate that are located outside of the twenty-four plaintiff states listed above should now prepare (or continue preparing) policies and procedures to comply with the Rule.  This includes collecting vaccination information and providing a documented exemption application process based on federal law requirements (such as medical and/or religious accommodations).  Those employers with union-represented employees should also consider engaging in discussions with unions about any potential impact of the Fifth Circuit’s decision on their represented employees.  But covered facilities should continue to be very cautious about taking adverse employment actions based on employees’ non-compliance with vaccination requirements.

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*Kamil Gajda, Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.