Despite data confirming that the newer Omicron variant of COVID-19 is transmissible even to those who are double vaccinated and boosted, recent federal court decisions have resuscitated President Joe Biden’s vaccine mandates. Given the demonstrated transmissibility of Omicron to vaccinated and unvaccinated alike, it is widely anticipated that the Supreme Court will consider the necessity of all vaccine mandates when it hears oral argument on January 7, 2022. That is the date that the nation’s highest court is scheduled to hear oral argument on emergency applications to stay the two preliminary injunctions that remain in effect in the remainder of the nation. For now, the Centers for Medicare and Medicare Services (“CMS”) has announced that it will resume efforts to implement and enforce its COVID-19 vaccination mandate for healthcare workers (“Mandate”) in the states and territories where the Mandate is not currently enjoined. Illinois and Virginia are among these states.

CMS has revised the compliance deadlines for the Mandate as a result of the uncertainty created by the nationwide injunction issued on December 6, 2021. Phase 1 of the CMS mandate now requires all employees, contractors, and volunteers at health care facilities participating in Medicare or Medicaid to have at least 1 dose of a COVID-19 vaccine by January 27, 2022.  Phase 2 requires that staff at all health care provider and supplier types included in the Mandate complete the primary vaccination series or have obtained an exemption by Feb. 28, 2022.  These new compliance deadlines are applicable in the 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. CMS also will enforce its Mandate in the District of Columbia and the territories.  This comes just two weeks after the Fifth Circuit Court of Appeals retracted a nationwide preliminary injunction against the CMS Mandate, instead of limiting the injunction to only the states involved in the lawsuit.

The eyes of the entire healthcare industry will be focused on the Supreme Court’s January 7 oral arguments, as the CMS Mandate’s viability hangs in the balance. Although the Court will be deciding whether to allow the CMS Mandate to be enforced in the remaining states while the underlying legal issues are resolved in litigation, the Court’s decision will impact all states, including those not currently covered by the preliminary injunctions.

Authored by: Rachael L. Loughlin and Michael D. Pierce