On November 30, 2021, a federal judge in the U.S. District Court for the Western District of Louisiana placed a nationwide preliminary injunction on the enforcement and implementation of Centers for Medicare and Medicaid Services’ (“CMS”) COVID-19 vaccination mandate applicable to healthcare workers (“CMS Vaccine Mandate” or “Mandate”). The case, State of Louisiana, et al v. Xavier Becerra, et al (W.D. La. Nov. 30, 2021), impacted the remaining 40 states where the CMS Vaccine Mandate remained viable. Just one day prior, on November 29, the U.S. District Court for the Eastern District of Missouri issued a separate preliminary injunction on the CMS Vaccine Mandate applicable to ten states. Both the Louisiana and Missouri decisions ultimately rested on the issues of separation of powers and federalism.

The CMS Vaccine Mandate emerged as a part of the Biden Administration’s “Path out of the Pandemic” COVID-19 Action Plan.  On September 9, 2021, President Biden announced this six-pronged Plan to increase the number of vaccinations among American adults. In the President’s announcement, he stated that CMS would take action to require COVID-19 vaccinations for workers in health care settings that receive Medicare or Medicaid reimbursement.  Two months later, CMS issued its Mandate on November 5, 2021, characterizing it as an interim final rule. It set January 4, 2022 as the deadline for all affected healthcare facilities to have a fully vaccinated staff.  No testing option was included, although the Mandate allowed for exemptions under Title VII and the Americans with Disabilities Act.

Rumors of challenges by various state governments ran rampant in the period between the President’s announcement and issuance of the CMS Vaccine Mandate.  On November 15, 2021, this particular challenge to the mandate was filed by 12 states: Louisiana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Montana, Oklahoma, South Carolina, Utah, and West Virginia (collectively, the “States”).  The States raised five specific legal challenges to the Mandate, likely intended to increase the likelihood of obtaining some form of temporary injunctive relief.  That strategy appears to have been effective for now.

The Court’s 34-page opinion granting the preliminary injunction covered all five of the States’ arguments and found nearly every challenge to be valid. However, it is important to note that the Court did not make a final determination of these legal issues. The matters were not subjected to any substantial discovery process, the Court did not hear testimony, and there was no cross-examination of witnesses or weighing of the evidence.  Because the States sought emergency relief in the form of a temporary injunction, the judicial process was streamlined, which is routine in federal and state courts nationwide.

The Court’s opinion included a few particularly noteworthy points:

  • Just days earlier, the Fifth Circuit imposed a nationwide stay on OSHA’s Emergency Temporary Standard imposing a vaccination-or-test mandate on certain private employers, and this stay rested on substantially similar grounds as those raised by the States in this case.
  • The CMS Vaccine Mandate appears to have exceeded Executive Branch authority at the federal level and the Court questioned whether even Congress could constitutionally mandate vaccination of healthcare workers under present circumstances.
  • CMS lacked sufficient cause to forego the statutorily required notice and comment period prior to issuing the Mandate, thus depriving the public of any meaningful opportunity to weigh in on the matter.
  • The CMS Vaccine Mandate inexplicably rejected less strenuous alternatives including daily or weekly testing, wearing masks or shields, natural immunity and/or social distancing, and did so without evidence supporting the rejection.

The decision came one day after a Missouri federal judge enjoined the CMS Vaccine Mandate in State of Missouri, et al v. Joseph R. Biden, et al (E.D. Mo. Nov. 29, 2021), which covered Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

As of December 3, 2021, the Biden Administration has appealed both the Louisiana and Missouri decisions to the Fifth and Eighth Circuits, respectively. CMS issued a memorandum on December 2, indicating that the agency will comply with the injunctions and suspend all activities related to implementing or enforcing the Mandate “pending future developments in the litigation.”  The overall constitutionality of the CMS Vaccine Mandate will likely end up being resolved by the U.S. Supreme Court.

Authored By: Michael D. Pierce, Esq.