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CMS Vaccine Rule’s Status (and Fate) Lands in the Supreme Court of the United States

On December 15, 2021, the Fifth Circuit Court of Appeals stayed, in part, a nationwide preliminary injunction prohibiting the Centers for Medicare and Medicaid Services (CMS) from enforcing its COVID-19 vaccination mandate for healthcare providers. The Fifth Circuit stayed the injunction as to states that are not a party to the lawsuit. The preliminary injunction remains in effect for the 14 plaintiff states. Also on December 15, 2021, a federal court in Texas issued a preliminary injunction prohibiting the CMS from implementing or enforcing its healthcare vaccine mandate in that state.

The very next day, the CMS applied to the Supreme Court of the United States for a stay of the injunctions issued by the lower courts in Louisiana, Missouri, and Texas.


In November, 14 states, including Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia, filed a lawsuit in federal court in Louisiana, seeking a preliminary injunction halting implementation and enforcement of the CMS interim final rule imposing a vaccine mandate. On November 30, 2021, the Louisiana federal court issued a nationwide preliminary injunction preventing the CMS from enforcing its vaccine mandate rule. This order followed a limited injunction issued by a Missouri court that applied to only the 10 plaintiff states in that case and a Florida federal court’s denial of a motion for a temporary restraining order or preliminary injunction in a lawsuit filed by that state.

Texas also filed suit against the CMS in federal court in Amarillo, Texas, and sought a preliminary injunction against enforcement. Following the November 30, 2021, ruling in Louisiana, the CMS issued a memo to state survey agency directors stating that it would not enforce its vaccine mandate nationwide pending further court action. After the memo was issued, the Texas federal court granted the motion for preliminary injunction and held in abeyance any further proceedings in that case. The court stated that it would immediately reconvene following an order in any other court to “finally” decide the motion for preliminary injunction before it.

The Fifth Circuit Order

In its December 15, 2021, order, the Fifth Circuit concluded that the Louisiana district court “gave little justification for issuing an injunction outside the 14 States that brought this suit.” The Fifth Circuit found that uniformity across the country was not required in the case of the CMS’s vaccine mandate and that other states may not have filed suit because they actually favored the mandate.

The Texas Federal Court Order

Following the December 15 order from the Fifth Circuit, the Texas court convened a same-day hearing on the pending motion for preliminary injunction in that case. Later that night, the court issued an order enjoining the CMS from implementing or enforcing its vaccine mandate in Texas.

The Eleventh Circuit Order

On December 6, 2021, the Eleventh Circuit Court of Appeals denied an injunction pending the state of Florida’s appeal of a lower court’s ruling that the CMS “was authorized to promulgate the interim rule” under its “express statutory authority to require facilities voluntarily participating in the Medicare or Medicaid programs to meet health and safety standards to protect patients.”

The CMS points to this ruling from the Eleventh Circuit as a sign that there will be a conflict among the various federal courts of appeal such that the Supreme Court of the United States essentially must decide the issue on a nationwide basis for purposes of consistency.

What Does the CMS Rule Look Like Now?

The CMS rule is preliminarily enjoined in 25 states, including: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.

The CMS rule is no longer enjoined in the following 25 states: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin. The rule is also no longer enjoined in the District of Columbia.

The Takeaway

CMS has not yet issued new guidance following the court rulings on December 15, 2021, but its application for a nationwide stay of the injunctions issued by the lower courts indicates that it intends to continue its fight to implement and enforce its healthcare vaccination mandate.

Employers covered by the CMS rule and operating in multiple states likely want consistency across the country most of all. And, the preemption of conflicting state laws prohibiting vaccine mandates even by healthcare organizations hangs in the balance.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 352

About this Author

Baker, Dallas, shareholder, Ogletree

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.  

Ms. Baker also advises...

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

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.

Jody Ward-Rannow Attorney Corporate Law Ogletree Deakins Law Firm Minneapolis
Of Counsel

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.

Additionally, Jody regularly partners with human resources professionals, business leaders and/...