The appeals court denied the federal governments motion to accelerate the briefing schedule for its motion to lift the Fifth Circuits nationwide stay. The bottom line: the Supreme Court is going to have a busy holiday season ahead of it, and it will soon have the last word on whether these two mandates go into effect while the courts of appeals consider them on the merits. In their questions, the three Justices drew a distinction between the CMS mandate, which merely states that the federal government will only spend its health care dollars at facilities with vaccinated staff, and the OSHA mandate, which the Justices viewed as an expansive direct regulation of American workplaces normally left to states or Congress. We will be listening especially closely when these three median Justices speak, and what the other six Justices say and ask with those Justices in mind. Like its Missouri counterpart, the Western District of Louisiana held that CMS lacked authority to implement the mandate. If the court takes the case initially en banc, presumably the full court will decide whether to lift the Fifth Circuits stay or not. After holding oral argument, the district court agreed to stay the lawsuit because the CMS mandate is already stayed in Texas as a result of the Louisiana district courts almost-nationwide injunction. Healthcare workers in the 24 states that are newly subject to the Centers for Medicare and Medicaid Services' COVID-19 vaccine mandate will need to get their first shot by Feb. 14 and final shot . So this does not end with the Sixth Circuits rulings. A federal district court in Louisiana late yesterday issued a preliminary injunction placing a temporary hold on enforcement of the Centers for Medicare & Medicaid Services vaccine mandate for health care facilities in all states, except the 10 already covered by the Missouri district court's preliminary injunction issued on Nov. 29. Another 12 states take CMS to court over COVID-19 vaccine requirements An update on the federal CMS vaccine mandate. Missouri et al. How Modern Manufacturing Plants Can Protect Against Ransomware, FTC Will Host May 23, 2023, Workshop on Recyclable Claims and the Appellate Court Affirmed An Order Denying A Beneficiarys Request For An Overview of Why Class Action Privacy Lawsuits May Have Just Gotten Gold Dome Report Legislative Day 26 (2023). Covid-19. The federal government responds that an emergency standard is appropriate any time there is a new hazard and that SARS-CoV-2s recent emergence meets that standard, particularly given the prevalence of newly harmful variants. She argued that the OSHA mandate exceeded OSHAs statutory authority and that it failed under the major-questions doctrine. But it is unlikely that the Sixth Circuit will tailor the injunction in that way; the most likely result is either upholding or vacating the Fifth Circuits stay wholesale. The court therefore upheld the injunction only as applied to facilities in the 14 states that brought suit: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio. First, the Eleventh Circuit in a 2-1 order declined to impose an injunction pending appeal in Floridas challenge. The Eighth Circuits denial also means that the federal government can now ask the U.S. Supreme Court to stay the Missouri district courts preliminary injunction, setting up a high court showdown over whether the CMS vaccine mandate should go into effect. Court ruling puts CMS vaccine mandate on temporary hold across the Three other challenges to the CMS vaccine mandate are pending in federal courts in Florida, Louisiana and Texas. He practices labor and employment law, with a particular emphasis on labor relations, and employment law counseling and litigation. Gov. Little joins third lawsuit challenging Biden vaccine mandates Feb. 28 is the deadline to receive your second dose or to receive an approved medical . The Sixth Circuit also denied the federal governments motion to a set an accelerated briefing schedule for the merits appeal, suggesting that the court is in no rush to decide this case on the merits or at least not yet. That would prevent enforcement but defer the bigger statutory questions until CMS and OSHA issue final vaccine-mandate rules with public participation, which will start the cycle of litigation all over again. Nov. 30, 2021). As for public participation, the court held that the impending winter flu season was sufficient good cause to dispense with advance notice and comment. The, A new video from AHA and the Childrens Hospital Association is reminding the public how vaccines and boosters are safe, effective means for preventing, In a new public service announcement, leaders of the AHA, American Medical Association and American Nurses Association encourage the public to get vaccinated, When the omicron BA.4/BA.5 variants were circulating, Americans who received an updated COVID-19 vaccine were 14 times less likely to die than those who, The Food and Drug Administration last week removed the requirement for a positive COVID-19 test result to prescribe Paxlovidto certain adult and, Blog: Updates on Legal Challenges to CMS and OSHA Vaccine Mandate Rule, Advancing Health Podcast: Analysis of Supreme Court Oral Arguments on Vaccine Mandates, Updates and Resources on Novel Coronavirus (COVID-19), Institute for Diversity and Health Equity, Rural Health and Critical Access Hospitals, National Uniform Billing Committee (NUBC), AHA Rural Health Care Leadership Conference, Individual Membership Organization Events, The Important Role Hospitals Have in Serving Their Communities, Analysis of Supreme Court Oral Arguments on Vaccine Mandates, View the Complete CMS Case Twitter Thread, View the Complete OSHA Case Twitter Thread, U.S. Court of Appeals for the Fifth Circuit, U.S. Court of Appeals for the Sixth Circuit, Study: COVID-19 vaccine effectiveness may wane in younger children as well, In time for Valentines Day, AHA issues supplemental toolkit on COVID-19 vaccines, Video: AHA, CHA urge vaccination to prevent COVID-19, flu and RSV infections, AHA, AMA and ANA remind Americans to get COVID-19 vaccine, updated booster, CDC: Vaccinated Americans up to 14 times less likely to die from COVID-19, FDA removes positive test requirement for two COVID-19 outpatient therapies, American Organization for Nursing Leadership. The court rejected the challengers arguments that the statute authorizes [CMS] to impose no more than a list of bureaucratic rules regarding the technical administration of Medicare and Medicaid. The court cited with approval CMS longstanding practice of using its statutory authority to regulate the safe and effective provision of healthcare, not simply sound accounting. For example, CMS regulations govern how long after admission a patient must be examined, and by whom; the procurement and transplant of solid organs; tasks that can be delegated by a physician to an advanced-practice provider; and the control of infectious diseases within a facility. Second, the U.S. Court of Appeals for the Eighth Circuit, which is hearing the federal governments appeal from the Missouri district courts preliminary injunction, has asked for a response to the federal governments stay motion by Dec. 8. Vaccination Enforcement- Surveying for Compliance Medicare and Medicaid-certified facilities are expected to comply with all regulatory requirements, and CMS has a variety of establis hed enforcement remedies. Chief Justice Roberts early on suggested that workers at a meatpacking plant sitting side by side on the production line might need protection from an OSHA standard whereas office workers might not. Her practice is focused on employment litigation, preventive counseling and labor relations. However, following the issuance of the two injunctions in Missouri and Louisiana, CMS issued an update to its vaccine mandate FAQs that included the following statement: "While CMS remains confident in its authority to protect the health and safety of patients in facilities funded by the Medicare and Medicaid programs, it has suspended . Next is the Texas district court challenge brought by the State of Texas. The preliminary injunction by the U.S. District Court for the Western District of Louisiana marks the second victory for opponents of the mandate, which requires health workers to get vaccinated by Jan. 4, 2022. CMS also will enforce its vaccine mandate in the District of Columbia and the territories. Act Now to Prepare for its Opening on June federal court in the Eastern District of Missouri. The challengers invoke what is called the major questions doctrine, under which Congress must clearly and unambiguously authorize agencies to implement programs that have vast economic and political significance. A vaccine mandate for a large majority of health care workers, the challengers contend, is of such economic and political significance that it must be expressly authorized by Congress. And Justice Barrett signaled that she thought that mandate was too broad in its current form. All affected employers should continue to monitor this quickly evolving vaccine mandate, as well as applicable state law, and be prepared to pivot, pending appeal rulings and further updates. The U.S. Supreme Court has ordered the challengers from the Missouri and Louisiana CMS vaccine-mandate cases to respond to the federal governments application to stay those district courts preliminary injunctions by Dec. 30 at 4 p.m. Like the CMS mandate, it is extremely unlikely that the Sixth Circuit will act on the motion to lift the Fifth Circuits stay before the initial Dec. 6 compliance date. Locking Tik Tok? President Joe Biden's sweeping COVID-19 vaccine mandates are facing a slew of lawsuits from states and private employers. And we can expect the Texas district court to shortly enter a preliminary injunction as applied to facilities in Texas following this Fifth Circuit ruling. Second, the court saw the CMS regulation as tailored to the threat COVID poses in the health care setting, whereas the OSHA rule was too indiscriminate in regulating all workplaces with 100+ employees. What HR needs to know about vaccine mandate for health care workers CMS Vaccine Mandate Blocked by Federal District Court An update on the federal CMS vaccine mandate - President H-2B Cap for Fiscal Year 2023 Is Met: A Supplemental Cap Increase As COVID-19 Emergency Waivers End, DEA Proposes to Expand Tele- How Employers Need to Prepare for the End of the COVID Public Health USPTO To Transition To Electronically Granted Patents In April 2023, Reductions in Force: Some High-Level Issues To Consider, CMS Streamlines Stark Law Self-Referral Disclosure Protocol (SRDP), The Alice Eligibility Two-Step Dance Continues, FTC is Talking Trash and Zeroing-in on Recyclable Claims, FTC Hosts Forum on Proposed Rule to Ban Noncompete Clauses. But at this point, the writing is on the wall: The court has five votes to uphold a CMS vaccine mandate and six votes to vacate an economy-wide OSHA vaccine-or-test mandate. Well let you know any updates. Lets start with the challenges to the CMS mandate. First, the federal government, as expected, has appealed the Louisiana district courts almost-nationwide injunction to the U.S. Court of Appeals to the Fifth Circuit in New Orleans. But we seem to be getting new rulings almost every day, so follow us here for the latest updates. Second, the Eleventh Circuits denial allows Florida to seek relief from the U.S. Supreme Court, potentially teeing up a showdown before the high court. HELENA A federal judge in Louisiana has granted a preliminary injunction against the COVID-19 Centers for Medicare & Medicaid Services (CMS) vaccine mandate following a lawsuit filed by. Louisiana, and Tennessee helped Attorney . Visas for F and M Students Can Now Be Issued 365 Days Ahead of Program Start Date, Supreme Court Clarifies the Meaning Salary Basis Under Federal Overtime Law. The motion asks for the full court to overrule the three-judge panels order denying Florida an injunction pending appeal, and similar motions are rarely granted. As a follow-up to the Nov. 11 announcement of the federal COVID-19 vaccine mandate from the Centers for Medicare and Medicaid Services (CMS), I wanted to provide these updates and reminders to all UTMB employees, students/trainees, volunteers and contractors: If those concerns come up Friday from the median justices, that may be bad news for the vaccine mandates proponents. We have known that the Supreme Court would have the last word on whether the vaccine mandates go into effect, and the governments application gives it the chance to do so for the CMS mandate. The courts unsigned majority opinion was joined by Justice Breyer, Justice Sotomayor and Justice Kagan and two of the three median justices Chief Justice Roberts and Justice Kavanaugh. Conservative justices in the past have been concerned that agencies have been overreaching and thus usurping Congresss role. In addition, the federal government filed its reply in support of its motion to stay the Louisiana district courts injunction in the Fifth Circuit, meaning that the motion is now fully briefed. And because the CMS mandate is only an interim measure, the Supreme Courts action on the federal governments forthcoming application may decide, practically speaking, whether the current CMS mandate ever goes into effect before it is superseded by a final, permanent mandate. The Louisiana federal court carved out of its order the 10 states that previously received a preliminary injunction from thefederal court in the Eastern District of Missouri. It applies to full-time employees, part-time employees, volunteers and contractors at health care facilities that participate in Medicare and Medicaid programs, affecting an estimated 76,000 health providers. In the OSHA-mandate arguments, the median Justices were concerned that OSHAs vaccine mandate was not tailored to workplace hazards and instead intruded on Congress and states role to protect the general welfare. WRKF. The U.S. Court of Appeals for the Eighth Circuit just denied a stay pending appeal of the Missouri district courts preliminary injunction enjoining the Centers for Medicare & Medicaid Services vaccine mandate in the 10 states that are part of that lawsuit. Statement in compliance with Texas Rules of Professional Conduct. The majority also held that the CMS vaccine mandate was likely authorized by the Medicare and Medicaid statutes; that CMS had good cause for bypassing notice-and-comment rulemaking; and that CMS adequately considered all relevant aspects of the mandate before issuing it. Oppositions to the federal governments motion to lift the stay remain due Dec. 7, and the federal governments reply is due Dec. 10. In November 2021, the Secretary an- . The challengers contend that vaccines have been available for health care workers for months and that there was no immediate emergency apart from the pandemic generally to justify issuing the mandate without a comment period. This emergency . Federal Judge Blocks Vaccine Mandate for Health Workers - The New York More fundamentally, the tenor of the CMS and OSHA mandate arguments were different. The more-conservative Justices, however, argued through their questions that it is important to maintain what they saw as the appropriate balance between the executive and legislative branches, even in a pandemic.