The flurry of vaccine mandate litigation continues. We recently wrote on a federal district court’s preliminary injunction blocking the Centers for Medicare and Medicaid Services (“CMS”) mandate across the country. However, a recent subsequent decision by the Fifth Circuit reinstated the CMS vaccine mandate for the majority of the United States.
In the opinion, the Fifth Circuit, per curiam, found the plaintiffs were not likely to be successful on the merits in the states that were not plaintiffs to the lawsuit. The court analyzed whether one district court should make a binding judgment for the entire country and found that the district court gave little justification for issuing an injunction outside of the 14 plaintiff states that brought the lawsuit. The Fifth Circuit cited a United States Supreme Court decision concurrence penned by Justice Gorsuch in which he critiqued nationwide injunctions stating that such injunctions can constitute “rushed, high-stake, low-information decisions” and that it is best for lower courts to issue interlocutory relief for only the parties at hand. Department of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of a stay).
The states that the CMS vaccine mandate can now be enforced are as follows: (1) California; (2) Colorado; (3) Connecticut; (4) Delaware; (5) Florida; (6) Hawaii; (7) Illinois; (8) Maine; (9) Maryland; (10) Massachusetts; (11) Michigan; (12) Minnesota; (13) Nevada; (14) New Jersey; (15) New Mexico; (16) New York; (17) North Carolina; (18) Oregon; (19) Pennsylvania; (20) Rhode Island; (21) Tennessee; (22) Texas; (23) Vermont; (24) Virginia; (25) Washington; and (26) Wisconsin.
The CMS mandate cannot be enforced in Ohio or any of the other states not listed above.
The CMS has suspended activities related to implementation and enforcement of the rule pending future developments in litigation. The CMS has not released guidance on when enforcement will begin in the 26 states where the vaccine mandate can now be enforced.
Bugbee and Conkle will continue to write on the updates in vaccine mandate litigation across the country. Bugbee and Conkle’s Labor and Employment Section is experienced in counseling clients relating to all COVID-19 issues, including vaccine mandates and can be reached anytime should you have any questions.