On November 30, 2021, a federal district court in Louisiana issued a nationwide injunction enjoining the implementation of the CMS mandate imposing COVID-19 vaccination requirements on covered healthcare providers. This decision follows that of the Eastern District of Missouri, which issued a similar injunction regarding the CMS mandate for Medicare and Medicaid certified providers and suppliers within the states of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.
The Louisiana District Court found the plaintiffs met all the requirements for a preliminary injunction. The court recognized that a higher court will ultimately decide the lawfulness of the CMS mandate but held that the status quo needed to be maintained because the “liberty interests of the unvaccinated requires nothing less.” The court further found that the injunction should have a nationwide scope because “there are unvaccinated healthcare workers in other states who also need protection.”
With millions of healthcare workers required to receive the first dose by December 6, 2021 under the CMS mandate, healthcare employers are now left wondering what to do next, particularly now that all three federal vaccine mandates have been enjoined by the courts. First, this injunction does not prohibit a private employer, particularly in the healthcare space, from requiring its employees be vaccinated (unless an exemption applies). Courts have routinely upheld private employers’ vaccine mandates. Therefore, private healthcare employers are free to continue requiring their employees be vaccinated if they wish to do so. Healthcare employers who choose not to require their employees to be vaccinated may press pause on the implementation of a vaccine mandate policy for the time being. As the Western District of Louisiana is in the Fifth Circuit, which is unlikely to overturn this opinion given its prior injunction on the OSHA ETS mandate, we do not anticipate this injunction to be lifted in the near future.
If you have any questions regarding this Alert, please contact the authors, Rachel Ullrich, rullrich@fordharrison.com, and Julie Adams, jadams@fordharrison.com, both of whom are members of FordHarrison’s Coronavirus Taskforce. Of course, you can also contact the FordHarrison attorney with whom you usually work.