Like the OSHA and federal contractor vaccine mandates the CMS IFR is also under fire in the courts 

December, 2021 - Mark Peters, Marcus Crider

As November drew to a close, two district courts changed the landscape for healthcare employers who were working towards the December 5 deadline to implement the CMS Interim Final Rule’s vaccination mandate. On November 29, a federal district court in Missouriissued a preliminary injunctionenjoining the Government from imposing and enforcing the CMS IFR. Among other conclusions, the District Court held that the "Plaintiffs are likely to succeed in their argument that Congress has not provided CMS the authority to enact the regulation at issue here" and "given the vast economic and political significance of this mandate, only a clear authorization from Congress would empower CMS to act."

The District Court also noted that it appears that CMS "improperly bypassed notice and comment requirements" and there was not "good cause" to do so. Last but not least, the District Court found that the Plaintiffs "are likely to succeed in establishing that the CMS vaccine mandate is arbitrary and capricious." That decision came just a few days after a federal district court in Florida had refused to enjoin enforcement of the CMS IFR -- notwithstanding Florida Governor Ron DeSantis signing four bills blocking employers and others from enforcing COVID vaccination mandates -- finding that the State of Florida had failed to show irreparable injury.

One day after the Missouri decision, Judge Doughty of the Western District ofLouisiana also enjoined enforcement of the CMS IFR, but this time nationwide “due to the need for uniformity.” The Louisiana court found in favor of the plaintiff states on grounds similar to the Missouri district court, though often using more direct and provocative language: "Although CMS spent pages and pages attempting to explain the need for mandatory COVID-19 vaccines, when infection and hospitalizations rates are dropping, millions of people have already been infected, developing some form of natural immunity, and when people who have been fully vaccinated still become infected, mandatory vaccines as the only method of prevention make no sense." As Judge Doughty recognized, "this matter will ultimately be decided by a higher court than this one." The Government already is seeking review of the Missouri opinion and the others will not be far behind.

As these cases make their way through the courts, healthcare employers are left to wonder what to do about the policies they have adopted and announced to employees about vaccine and/or testing mandates. Many employers viewed and relied on those government mandates as “cover” to enforce policies that they knew, based upon the science, would do the most to slow the spread of COVID-19 and force reluctant employees to get vaccinated. Of course, regardless of the status of the court challenges to the various mandates, employers are still free to adopt health and safety policies consistent with their operational needs and in compliance with state and federal law. This is an important decision-point for healthcare employers: whether to move ahead with the implementation of the vaccine/testing policies notwithstanding the adverse rulings to date or whether to suspend such implementation until there is more clarity from a higher court. Waller’s experience healthcare labor and employment lawyers are ready to answer your questions and provide recommendations that help you make the decision on which option is best for your organization and patients. In the meantime, we will continue to monitor the situation and provide timely updates.


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