January 23, 2022

Volume XII, Number 23

Advertisement
Advertisement

January 21, 2022

Subscribe to Latest Legal News and Analysis

January 20, 2022

Subscribe to Latest Legal News and Analysis

Breaking News on the CMS Vaccination Rule: Less Than 24 Hours After Being Shelved in 10 States, the Rule Is Sidelined Nationwide

In a November 30, 2021, order, a federal judge sitting in Louisiana entered a nationwide preliminary injunction against the Biden administration’s Centers for Medicare and Medicaid Services’ (CMS) interim final rule entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.” The effect of the order is that CMS must immediately “cease all implementation or enforcement of the [CMS] Rule” in the remaining 40 states not covered by an earlier November 29, 2021, order from a federal judge sitting in Missouri that prevented implementation and enforcement of the CMS rule in only 10 states. And, even earlier, a federal judge sitting in Florida entered a November 20, 2021, order denying any temporary restraining order or preliminary injunction against the CMS rule in Florida or any state.

This fast-developing situation now places the fate of the CMS rule in three different appellate courts—the Fifth, Eighth, and Eleventh Circuit courts of appeal—and presumably, eventually in the Supreme Court of the United States.

Finally, a federal judge sitting in Kentucky has entered a preliminary injunction  preventing enforcement of Executive Order (EO) 14042 in those three states, but a nationwide stay of the EO has not yet been ordered. For now, while neither the CMS rule nor the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) mandating vaccination or testing of employees of large employers may be implemented or enforced , the only potential federal preemption of the various state and local laws on the issues of vaccination and testing policies (either requiring or prohibiting them) involves federal contractors and subcontractors covered by EO 14042 that are not located in Kentucky, Ohio, and Tennessee.

At this point, every employer not covered by EO 14042 as outlined above (including those who otherwise had “covered facilities,” as defined by the CMS rule), may want to know the rules in each state and locality in which it conducts business and then design, update, modify, or discontinue its current policies as it sees fit within the parameters allowed in each jurisdiction.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 335
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Greg Guidry, Ogletree Deakins Law Firm, Labor and Employment Attorney
Shareholder

Greg Guidry is a Shareholder in the firm’s Lafayette, Louisiana office, a satellite location for the New Orleans office. He is licensed in Louisiana and Texas and has successfully represented management throughout the United States in all aspects of labor and employment law, including advice, training, prevention tactics and litigation for over 35 years. His practice includes traditional labor law (union issues), employment litigation, wrongful termination, wage and hour, and developing employment law issues.

Mr. Guidry also serves as a neutral...

337-769-6583
Shareholder

Dee Anna began her career in the labor and employment law field and continues to focus her practice on representing management in all aspects of labor and employment law compliance. She enjoys counseling clients to solve tough issues and enthusiastically defends them when necessary. Dee Anna has defended management in both federal and state courts, before numerous government agencies -- including the DOL, EEOC, NLRB, OSHA, FCHR, and OFCCP -- and has represented employers in audits performed by the Department of Labor Wage and Hour Division, OFCCP, and OSHA.

On a regular basis, Dee...

813 221 7239
James, Jim, Paul, Litigator, EEOC, NLRB, DOJ, OSHA, Ogletree Deakins
Shareholder

Jim has extensive experience in handling labor and employment law litigation in federal and state courts, and before the Equal Employment Opportunity Commission, the National Labor Relations Board, the Department of Justice, the Occupational Safety and Health Administration, and several state agencies.  He also regularly advises employers on all labor and human resource management issues in an effort to prevent or resolve employee issues before they escalate into legal disputes.

314-802-3950
Advertisement
Advertisement
Advertisement