Coronavirus (COVID-19), HR Management & Compliance

Healthcare Employers Have Options Despite Nationwide Halt to CMS Vax Mandate

A Louisiana federal district court has issued a nationwide injunction barring the Centers for Medicare and Medicaid Services (CMS) from enforcing its COVID-19 vaccine mandate for healthcare workers.

Vaccine Mandate CMS

How We Got Here

On Monday, November 29, a federal judge in Missouri enjoined the CMS from enforcing the vaccine mandate. The court, however, limited the injunction’s application to the 10 states challenging the rule: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

The next day, the Louisiana federal court issued its decision, also concluding the vaccine mandate was legally suspect, but it didn’t limit the injunction’s geographic scope. Instead, it reasoned: “[D]ue to the nationwide scope of the CMS Mandate, a nationwide injunction is necessary due to the need for uniformity.”

In its order, the Louisiana court made clear the U.S. Department of Health and Human Services (HHS) and the CMS are enjoined from enforcing the vaccinate mandate pending further directives from the court or an appeal to the U.S. 5th Circuit Court of Appeals (which covers Louisiana, Mississippi, and Texas) or, ultimately, the U.S. Supreme Court:

For the reasons set forth in this Court’s ruling, Plaintiff States’ Motion for Preliminary Injunction [Doc. No. 2] is GRANTED. Therefore, the [HHS] and the [CMS], along with their directors, employees, Administrators and Secretaries, are hereby ENJOINED and RESTRAINED from implementing the CMS Mandate set forth in 86 Fed. Reg. 61555-01 (November 5, 2021) as to all healthcare providers, suppliers, owners, employees, and all others covered by said CMS Mandate.

The Louisiana court acknowledged federal appeals courts would have the final say on the matter. The court noted, however, “it is important to preserve the status quo in this case.”

So, What’s Next?

The CMS will undoubtedly appeal the decision to the 5th Circuit and eventually to the Supreme Court. In the near term, however, the Louisiana court’s decision gives covered healthcare employers some flexibility in how they wish to proceed.

First, to be clear, healthcare employers wishing to proceed with a mandatory vaccination policy have the right to do so, even in the absence of the CMS requirements. Indeed, before the mandate, courts consistently upheld mandatory vaccination policies, provided the employer accommodates those with sincerely held religious beliefs or medical contraindications.

Second, for healthcare employers that were scrambling to meet the CMS deadline of December 6 for having nearly all employees receive at least the first dose of the COVID-19 vaccine (or have requested an exemption), they likely won’t be required to remove workers who haven’t met the requirements by the due date. Stated differently, the Louisiana court’s injunction would likely prevent the CMS from faulting the employer for failing to comply with its mandate by December 6.

Finally, do the court developments mean healthcare employers should abandon their COVID-19 vaccine mandates? Certainly not. Keep in mind the CMS will invariably appeal, and an appellate court could lift the injunction at any time. Employers that have already enacted their own policies could simply proceed with them if the CMS’s mandate remains in place. Again, the court’s injunction is directed at the federal agency, so it is prevented from enforcing the mandate against healthcare employers.

Takeaways For Employers

While it will take time for the dust to settle, the decision doesn’t affect healthcare employers that have already implemented a COVID-19 vaccine mandate or were planning to do so regardless of the CMS mandate.

For employers that implemented the mandate only because of the CMS rule, they will likely have additional time to comply while the agency appeals the court’s decision, but they shouldn’t assume the requirements won’t go into effect. Indeed, after the agency appeals the decision, the injunction could be lifted at any time.

We’ll continue to monitor the situation as it develops.

Grant T. Collins is an attorney with Felhaber Larson in Minneapolis and can be reached at gcollins@felhaber.com.