Federal Vaccine Litigation Update (updated 12.20.21)
December 9, 2021 • 2 min read
As of December 9, 2021, three federal vaccine mandates (OSHA, federal contractor, and CMS) are on hold nationwide.
The Biden Administration filed a motion to dissolve the nationwide stay put into place by the Fifth Circuit Court of Appeals, which prohibits OSHA from enforcing its vaccine or testing mandate. Briefing on the motion is still ongoing through December 10. The Sixth Circuit Court of Appeals’ decision on whether it will modify or dissolve the stay while litigation is ongoing could be issued at any time.
Meanwhile, the U.S. District Court for the Western District of Louisiana denied the Biden Administration’s request to stay its’ nationwide injunction that blocked enforcement of the CMS mandate. The federal government filed its appeal of the Louisiana decision on December 2 and requested a stay of the nationwide injunction while the appeal is pending. A Missouri judge also issued a preliminary injunction that barred implementation of the CMS mandate in ten specific states (MO, NE, AR, KS, AK, IA, WY, SD, ND and NH). The decision was appealed to the Eight Circuit Court of Appeals. However, not all courts have issued injunctions to the CMS mandate. On December 6, the Eleventh Circuit Court of Appeals sided with a district court in Florida and declined to issue an injunction pending the appeal. The Eleventh Circuit reached a different legal conclusion than the district courts in Louisiana and Missouri. Although the nationwide injunction issued by the Louisiana court remains in effect, the Eleventh Circuit’s Order demonstrates that the ultimate outcome in these cases is not a forgone conclusion.
(UPATE AS OF 12.20.21) CMS Update: Injunction to CMS Mandate lifted in multiple states, but not Ohio
The Fifth Circuit Court of Appeals has partially upheld and partially reversed the Louisiana district court’s nationwide injunction blocking enforcement of the Centers for Medicare & Medicaid Services (“CMS”) mandate. The injunction will remain in effect in the 14 states that were party to the case, including Ohio. The CMS mandate is also stayed in 10 additional states by order of a federal court in Missouri. The Eighth Circuit Court of Appeals recently denied the Biden Administration’s request to lift the Missouri court’s injunction pending appeal.
As of December 19, 2021, an injunction remains in effect in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisan, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.
The CMS has not commented on when or if it will begin compliance surveys in states where the injunction has been lifted. Covered entities should consult with counsel to discuss policies and procedures necessary to comply with the CMS mandate if they operate in a state where the injunction has been lifted and/or if they are also subject to the OSHA ETS.
We will continue to update you as these cases proceed through the appellate process. Please contact your counsel with questions.
