John Melcon

A district court has halted the federal vaccine mandate applicable to millions of workers in Medicare- and Medicaid-certified healthcare facilities, preventing the mandate from going into effect in ten states. The Missouri-based court ruled that the mandate at issue likely exceeds the authority delegated by Congress to the Secretary of Health and Human Services.

Although the currently stayed OSHA vaccine-or-test Emergency Temporary Standard (the OSHA ETS) for private employers with 100 or more workers has received most of the media attention, the Centers for Medicare and Medicaid Services—an agency within the Department of Health and Human Services—issued a simultaneous mandate (the CMS mandate) covering roughly 76,000 facilities receiving Medicare and/or Medicaid funding. The CMS mandate applies to employees, contractors, students, and volunteers in covered facilities and requires a first COVID vaccine dose by December 6. Unlike the OSHA ETS, the CMS mandate does not permit weekly COVID testing as an alternative to vaccination. It does contemplate religious and medical accommodations.

Ten states—Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire—promptly challenged the CMS mandate in federal court in Missouri. Siding with the states, the court held that “even if Congress has the power to mandate the vaccine and the authority to delegate such a mandate to CMS”—issues the court did not address—the states’ challenge would likely succeed because “Congress did not clearly authorize CMS to enact … this politically and economically vast, federalism-altering, and boundary-pushing mandate.” The court also labeled the mandate “arbitrary and capricious” and faulted CMS for bypassing administrative notice and comment requirements without “good cause.”

A federal court in Florida previously brushed aside a similar bid to block the CMS mandate. Challenges brought by a dozen or so other states remain pending.

While temporary in nature, limited to the CMS mandate, and applicable in only ten states, the Missouri district court’s preliminary injunction could foreshadow the fate of federal vaccine mandates generally, including the OSHA ETS. Employers covered by any of these mandates are advised to develop a multifaceted strategy adaptable to different eventualities. Register for Sherman & Howard’s upcoming vaccine mandate webinar for more details and practical tips.

UPDATE 12/1: A Louisiana-based federal district court has issued a nationwide preliminary injunction blocking the CMS vaccine mandate in the remaining 40 states. In reaching its decision to halt the CMS mandate, the Louisiana court relied heavily on the reasoning of the Fifth Circuit Court of Appeals in its decision staying the OSHA ETS.

UPDATE 12/15: The 5^th Circuit Court of Appeals denied the government’s request to stay the preliminary injunction barring enforcement of the CMS nationwide; however, the court’s denial extended only to the 14 plaintiff states, meaning that the government’s stay was granted with respect to the remaining jurisdictions. As it stands, the CMS mandate currently remains in effect in the following states: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin.

UPDATE 12/23:  In a pair of Orders issued Wednesday, the Supreme Court of the United States announced that it will hold separate oral arguments on January 7, 2022 regarding the enforceability of the OSHA ETS and healthcare worker and vaccine mandates.  The OSHA ETS is currently enforceable nationwide following the Sixth Circuit’s Order on December 17 lifting a stay of the ETS imposed earlier by the Fifth Circuit.  The Supreme Court denied petitions to stay the enforcement of the OSHA ETS while the Supreme Court reviews it.  The healthcare mandate is currently stayed in 24 states (including Arizona) but enforceable in the remaining 26 states (including Colorado) after rulings by the Eighth Circuit and Fifth Circuit Courts of Appeals. 

Employers should continue to prepare for compliance with mandates as they await the Supreme Court’s rulings.