Three vaccine mandates were issued by the federal government in November, and now two of the three have been enjoined nationwide.[1] On November 5, the Fifth Circuit Court of Appeals issued an order directing OSHA to cease steps to enforce its vaccine mandate. For more about the OSHA ETS, see our article here. The most recently enjoined mandate applied broadly to certain healthcare facilities.
The CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule became effective November 5, 2021, and applied to staff, volunteers, and other individuals who provided any care, treatment, or other services for a Medicare and Medicaid-certified provider or supplier facility or its patients. It required compliance in two phases. First, by December 6, covered employees were required to have received at least the first dose of the COVID-19 vaccine prior to providing any care, treatment, or other services for the facility or its patients. Second, by January 4, all covered employees must have received the number of doses required to be considered fully vaccinated.
On November 30, a Louisiana federal judge issued a nationwide injunction of the CMS mandate, saying that the government did not have the authority to implement the mandate. The injunction is effective “pending the final resolution of this case,” meaning that it has no finite expiration date. This case will likely be appealed, but there is no indication how long it will take for the appellate court—the Fifth Circuit—to issue a ruling. Interestingly, the Fifth Circuit is the same court that issued an injunction staying the OSHA vaccine mandate, which suggests that it may not be receptive to overturning the injunction issued by the Louisiana district judge. Ultimately, the validity of the CMS vaccine mandate will likely be decided by the Supreme Court.
Many healthcare employers already implemented a mandate to ensure compliance with the deadlines. Those employers now have the option of rescinding their policy in its entirety, modifying it to fit their specific workforce (e.g. only applying the mandate to certain more narrow categories of jobs or implementing a vaccine or test option), or moving forward with the policy currently in place. Healthcare employers who waited to implement the mandate now have a welcomed reprieve.
We will keep you updated on the frequent changes in this area.
[1] As of today, the Federal Contractor vaccine mandate has been enjoined in three states: Kentucky, Ohio, and Tennessee.
