On Tuesday, November 30, the Western District for Louisiana issued a preliminary injunction against the COVID-19 vaccine mandate issued by the Centers for Medicare and Medicaid (CMS). South Carolina joined in this lawsuit with thirteen other states (Louisiana, Montana, Arizona, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio). The Louisiana Court's injunction prevents CMS from enforcing its vaccine mandate for healthcare workers until the court can hear legal challenges to the CMS mandate.
The CMS mandate, issued on November 5, 2021, requires the staff of Medicare and Medicaid healthcare providers to receive the first dose of a vaccine by December 6, 2021, and the second dose by January 4, 2022. The preliminary injunction issued by the Louisiana District Court states that the scope of the injunction is "nationwide," except for the states covered by a similar injunction issued Monday by the Eastern District of Missouri (Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire).
The other mandatory vaccine requirements recently issued to private employers and federal contractors are also facing legal challenges. OSHA recently issued an Emergency Temporary Standard (ETS) that requires employers with 100 or more employees to either require their employees to be vaccinated or submit to weekly testing and wear a face covering. OSHA has since suspended implementation of the ETS after the 5th Circuit Court Appeals issued a temporary injunction against the rule. Another rule requiring federal contractors and subcontractors to be vaccinated has been halted in Kentucky, Ohio and Tennessee after the Eastern District of Kentucky issued a preliminary injunction against it.
What should healthcare providers subject to the CMS rule do while the rule makes its way through the legal system?
One option is to halt the implementation of your policy pending further clarification from the courts. However, this option is risky in that the mandate could survive legal challenge in the coming weeks and immediately take effect on the original timeline (December 6/January 4). That could leave covered providers scrambling to make sure employees are vaccinated. While the CMS mandate's timeline could be revised, it is not certain that it will be should it survive its legal challenges. This option is worth considering for companies with a low workforce vaccination rate and who have real labor shortage concerns with implementation.
Option two would be to press forward with implementing your policy. If the mandate survives, your business will be in an optimal position for compliance, even if the timeline is not revised. You may think implementing the policy is a good idea regardless of legal requirements. However, companies pressing forward should be prepared for increased pushback from employees now that the mandate is on hold.
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