On November 30, 2021, a federal district court in Louisiana enjoined implementation of the vaccine mandate issued by the Centers for Medicare & Medicaid Services (“CMS”). The order prevents implementation of the interim final rule until the entire case is decided on its merits unless (or until) the decision is reversed by the Fifth Circuit Court of Appeals or the Supreme Court. As we reported here on November 30, a federal court in Missouri had already directed CMS not to implement or enforce the rule in 10 specific states whose attorneys general brought an action in that court. With this new ruling from the federal court in Louisiana, CMS is now at least temporarily prohibited from implementing its vaccine mandate in all 50 states.
The CMS rule required the first phase of vaccinations – or a single-dose regime – to be completed no later than December 6, 2021, absent an approved exemption under federal law. That deadline is quickly approaching. Unless the Court of Appeals stays the court’s ruling before that date, the December 6 Phase 1 deadline will be a dead letter across the country.
The federal court decisions in Missouri and Louisiana seriously hinder – at least now – the Biden administration’s effort to vaccinate tens of millions of previously unvaccinated health care workers in the U.S. In the face of a prior court ruling, the administration had already paused implementation and enforcement of a vaccine mandate adopted by the Occupational Safety and Health Administration, which was set to apply to employers with 100 or more employees. And, on the same day as the Louisiana federal court enjoined the CMS rule, a different federal court in Kentucky effectively blocked the government’s implementation of a vaccine mandate applicable to federal contractors in the states of Kentucky, Ohio and Tennessee.
Several states have adopted measures that outlaw or restrict employers from enforcing vaccine mandates. It was widely believed that conflicting state measures would be preempted by the federal mandates. That conclusion is now far from certain unless and until the federal mandates are reinstated as litigation continues. Employers in these states will need to revisit their next steps.
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Article authored by Jon Rabin.
