Prepared by Jeffrey J. Sherrin, Esq., O'Connell and Aronowitz Attorneys at Law, NILA's General Counsel.

Two Court Injunctions Halt CMS Vaccine Mandate for Healthcare Workers Nationwide

There have been some very recent developments in two federal court lawsuits challenging the CMS vaccine mandates. In the lawsuit filed in Missouri, which involved 10 states, the federal court issued a preliminary injunction on 11/29 limited to the ten plaintiff states in the action. The injunction reads:

IT IS HEREBY ORDERED that Defendants are preliminarily enjoined from the implementation and enforcement of 86 Fed. Reg. 61,555 (Nov. 5, 2021), the Interim Final Rule with Comment Period entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination,” against any and all Medicare- and Medicaid-certified providers and suppliers within the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming pending a trial on the merits of this action or until further order of this Court. Defendants shall immediately cease all implementation or enforcement of the Interim Final Rule with Comment Period as to any Medicare- and Medicaid-certified providers and suppliers within the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

A notice of appeal was filed on 11/30, and yesterday the appeals court denied a motion for stay pending appeal. This means that this injunction is in effect.

In a separate case filed in federal court in Louisiana, (which originally involved 12 plaintiff states, but now has 14), the court issued a nationwide preliminary injunction against enforcement of the CMS mandate on 11/30. As a result of this order, the implementation and enforcement of the CMS mandate is now enjoined all over the country. The injunction in the Louisiana case states:

The scope of this injunction will be nationwide, except for the states of Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, Wyoming, North Dakota, South Dakota, since these ten states are already under a preliminary injunction order dated November 29, 2021, out of the Eastern District of Missouri. [...] For the reasons set forth in this Court’s ruling, Plaintiff States’ Motion for Preliminary Injunction [Doc. No. 2] is GRANTED. Therefore, the U.S. Department of Health and Human Services and the Center for Medicare and Medicaid Services, 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.

Yesterday a notice of appeal was filed, and the appeals court denied a motion for stay pending appeal.

Briefly, the CMS mandate, unlike the OSHA mandate, applies to a broad range of health care providers, but does not include clinical laboratories. It does, however, apply to laboratory employees who work at any of the provider sites enumerated in the CMS mandate. The injunctions apply until a final decision is rendered in the cases, whether after trial or otherwise, or until further court order of the courts. We will keep you posted on developments.