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Vaccine Mandate Confusion Continues – CMS Vaccine Mandate Restored in Some (But Not All) US States

Tampa, Fla. (December 16, 2021) - As has been widely publicized, the Biden Administration has attempted to impose various forms of vaccine mandates under a variety laws and programs. At the same time, we have seen a flurry of opposition to these efforts ranging from new state laws (for example, in Florida) to court challenges seeking to enjoin the effort.

One of the federal mandates was issued by the Centers for Medicare & Medicaid Services (CMS) and is applicable to staff at Medicare- and Medicaid-certified healthcare providers. Initially, fourteen states sued in opposition to the CMS mandate and were able to obtain a nationwide injunction issued by a federal district judge in Louisiana. That injunction was appealed to the Fifth Circuit Court of Appeals, which has now issued a decision that awards points to both sides.

The Fifth Circuit ruled the injunction only applies to the 14 states that participated in the Louisiana lawsuit and not nationwide. Those states are Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia. This opinion has the potential to revive the CMS vaccine mandate in just over half of U.S. states. We can anticipate new suits will be filed as to other states, with the outcome still uncertain. It is unknown at this point whether the United States Supreme Court will agree to review the issues when such review is sought in the near future.

There are other lawsuits pending that also seek to enjoin the CMS mandate with differing success. Multi-state healthcare providers are now in the awkward position of juggling differing obligations by state while monitoring several pending lawsuits at the same time.

Initially, CMS suspended its efforts at implementing or enforcing its vaccine mandate. Now that CMS has been given a green light to enforce its mandate in part of the country, it is unclear how and when (and, indeed, if) CMS will move forward. CMS-covered medical providers may soon have to comply with a fluid mosaic of conflicting federal, state, and local rules on vaccination. Worse, several have compliance deadlines that have already passed (the Phase 1 compliance deadline for the CMS mandate was December 6, 2021).

Lewis Brisbois’ labor & employment attorneys and COVID-19 Response Team are available to assist clients with navigating this difficult state of affairs. For more information, contact the authors or editor of this alert or visit our COVID-19 Response Resource Center.

Authors:

David S. Harvey, Jr., Partner

Sarah Hock, Associate

Editor:

Peter T. Shapiro, Partner

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