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December 16, 2021

CMS' vaccine mandate is back on in 26 states

Daily Briefing

    A federal appeals court on Wednesday partially reversed a previous court ruling that had stopped CMS' mandate requiring workers in most health care settings to be fully vaccinated against Covid-19 nationwide. Now, the mandate is applicable in 26 states.

    The Covid-19 vaccine mandate: Here's what's in CMS' new rule


    In November, the U.S. District Court for the Eastern District of Missouri blocked CMS' mandate from taking effect in 10 states. U.S. District Judge Matthew Schelp in the ruling said the mandate violates the Administrative Procedure Act, among other laws, and is unconstitutional.

    Then, earlier this month, U.S. District Judge Terry Doughty in Louisiana blocked the mandate nationwide until the court is able to resolve legal challenges to the rule.

    Doughty in his ruling said CMS doesn't have the authority to enact its vaccine mandate, arguing that "mandating a vaccine to 10.3 million health care workers is something that should be done by Congress, not a government agency."

    Federal court reverses ruling

    On Wednesday, the U.S. Court of Appeals for the Fifth Circuit ruled that the Louisiana injunction only applied to the 14 states that brought the case to court, and should not apply to the entire country.

    "This vaccine rule is an issue of great significance currently being litigated throughout the country. Its ultimate resolution will benefit from 'the airing of competing views' in our sister circuits," the court said.

    The court argued that the federal government is likely to win in limiting the scope of the nationwide injunction issued in the Louisiana court's ruling and stayed the injunction in all states except those that brought the lawsuit. In the ruling, the court said Judge Doughty had given "little justification for issuing an injunction outside the 14 states that brought this suit."

    The court also noted differences between CMS' vaccine mandate and Occupational Safety and Health Administration's mandate, which required vaccination for employees at businesses with more than 100 workers, which was blocked by a three-judge panel in New Orleans in November.

    Specifically, the court said CMS' rule targets "health care facilities, especially nursing homes … where Covid-19 has posed the greatest risk."

    As it stands, the CMS' rule does not apply in the 14 states that are part of the Louisiana ruling and the 10 states that are part of the Missouri ruling.

    Sean Marotta, a partner at Hogan Lowells, said in a blog post that the federal government "will likely ask the U.S. Supreme Court to stay the narrowed injunction upheld by the Fifth Circuit at the same time it asks the Supreme Court to stay the 10-state injunction upheld by the Eighth Circuit." (AHA News, 12/15; Appling/Schoonover, National Law Review, 12/15; McGill/Lieb, Associated Press, 12/15; Kruzel, The Hill, 12/15)

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