UPDATE to the Center for Medicare and Medicaid Services’ (CMS) Interim Final Rule: “Omnibus COVID-19 Health Care Staff Vaccination”

Today, December 15, 2021, the United States Court of Appeals for the Fifth Circuit stayed the nationwide preliminary injunction pertaining to the CMS health care worker vaccine mandate. The court decided to limit the injunction to the 14 states that filed the initial action, including: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio. In a brief opinion, the court found little justification for issuing an injunction outside the 14 states that brought suit. Lacking was the need for “constitutional uniformity” or “the concern that patchwork rulings would undermine an injunction limited to certain jurisdictions.” The court held that ultimate resolution of the vaccine mandate would “benefit from the airing of competing views in our sister circuits.”

This decision did not impact the preliminary injunction over the 10 states that filed suit in Missouri v Biden, (ED Mo, Nov. 29, 2021) including: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. Meaning, that only the 24 states listed are currently protected by court order and are not required to comply with the CMS mandate. As for the other 26 states and territories, including Michigan, there is nothing prohibiting CMS from implementing and enforcing the mandate’s requirements. CMS has not yet provided further guidance as to whether it will enforce the mandate in eligible jurisdictions or wait until litigation is complete. The merits challenging the mandate have yet to be addressed. Nonetheless, health care providers and suppliers in eligible jurisdictions should prepare to comply given today’s ruling.

See further details about the mandate’s requirements in our prior blog post: Across the Board Halt on Vaccine Mandates: Employers, What Does That Mean for You?

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Lauren  D.  Harrington is an associate attorney at Fraser Trebilcock focusing on Employment Law. You can reach her at 517.377.0874, or email her at lharrington@fraserlawfirm.com.

Elizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.