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Volume XII, Number 148

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CMS Vaccine Mandate Update: Last, but Not Least, Texas Joins the Rest of the Country

On January 13, 2022, the Supreme Court of the United States issued an opinion staying preliminary injunctions issued in cases filed in Missouri and Louisiana challenging the Centers for Medicare and Medicaid Services’ (CMS) COVID-19 vaccination mandate for healthcare providers. The ruling stayed preliminary injunctions applicable to twenty-four states. Twenty-five states were already subject to enforcement under the CMS rule. This left Texas standing alone and in limbo.

Dismissal of the Texas Case

On January 14, 2022, CMS filed in the U.S. District Court for the Northern District of Texas a motion to stay the preliminary injunction applicable to the State of Texas, pending the resolution of an interlocutory appeal that CMS filed with the U.S. Court of Appeals for the Fifth Circuit on the same day. The district court ordered the State of Texas to file its response to CMS’s motion by January 18, 2022.

On January 18, 2022, the State of Texas filed a motion to dismiss the case without prejudice. It also filed a response to CMS’s motion for stay, arguing that it was moot because Texas sought to dismiss the case.

CMS filed a reply memorandum on January 19, 2022, arguing that its motion to stay was not moot until the case was dismissed and requesting that the court either grant its motion to stay or dismiss the case by 5:00 p.m. on January 19, 2022.

The district court issued an order dismissing the lawsuit without prejudice on January 19, 2022, allowing CMS to enforce the vaccine mandate nationwide.

New CMS Deadlines Applicable to Texas

On January 20, 2022, CMS issued new guidance setting forth the following compliance deadlines for Texas:

  • By February 19, 2022covered facilities in Texas must have their vaccination processes and plans in place, and all covered staff must at least have taken their first dose of a vaccine or have a pending exemption request to be in compliance with the CMS rule.

  • By March 21, 2022, all covered staff must be fully vaccinated against COVID-19 or have received an exemption to be in compliance with the CMS rule.

All prior deadlines set for the other forty-nine states remain unchanged.

Takeaways

Covered facilities in Texas may want to consider dusting off their vaccination processes and plans and restarting the implementation process, if they have not already done so. With Texas’s state vaccine executive order in conflict with the CMS rule, Texas employers may also want to ensure their policies make clear that their CMS-compliant policies apply to CMS-covered facilities and preempts the executive order.  On the other hand, for any employee not working in a CMS- covered facility, another policy and/or the provisions of the executive order may apply to them.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 21
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Baker, Dallas, shareholder, Ogletree
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Jana Baker represents employers on all matters impacting their employees under federal and state labor and employment laws, including compliance with Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA).   Ms. Baker oversees investigations, handles charges of discrimination, harassment and retaliation, and defends any ensuing litigation in state and federal court.  

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James, Jim, Paul, Litigator, EEOC, NLRB, DOJ, OSHA, Ogletree Deakins
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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.

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Jody Ward-Rannow Attorney Corporate Law Ogletree Deakins Law Firm Minneapolis
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Jody Ward-Rannow represents large corporate clients and small local businesses in matters involving all aspects of labor and employment law including disability, race, and gender/pregnancy discrimination claims; retaliation claims; FMLA claims; workers’ compensation retaliation claims; non-compete/non-solicitation, and unfair competition claims; breach of contract claims; whistleblower retaliation claims, and discrimination lawsuits filed by the EEOC.

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