And just like that, the CMS vaccine mandate is back on in 26 states. Ok, 25 states. Maybe.


On Wednesday, the Fifth Circuit Court of Appeals — the same federal appellate court that stayed OSHA’s vaccine-or-test Emergency Temporary Standard — breathed new life into another federal vaccine mandate. I’m talking about the Center for Medicare and Medicaid Services healthcare COVID-19 vaccine mandate (the “CMS Rule”).

A few weeks ago, a federal judge in Louisiana had entered a nationwide injunction to block the CMS Rule. The CMS Rule requires the staff of twenty-one types of Medicare and Medicaid healthcare providers to receive one vaccine by December 6, 2021, and the second vaccine by January 4, 2022. Otherwise, the government can withhold Medicare and Medicare funding.

After the federal judge blocked the CMS Rule, the government appealed. It asked the Fifth Circuit to stay the nationwide injunction.

In this six-page opinion, the Fifth Circuit denied the motion insofar as the order applies to the 14 plaintiff states in the lawsuit (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio). However, the Fifth Circuit granted a stay for the rest of the country.

So, the CMS mandate is back in play in 36 states, DC, and U.S. territories, right? Well, not really. A Missouri federal court previously granted an injunction in ten other states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming). And the Eighth Circuit denied a stay pending appeal.

So, ok, 26 states then.

Well, not so fast. Because also on Wednesday, with the ink barely dry on the Fifth Circuit’s opinion, a Texas federal court blocked the CMS Rule — but just in Texas.

So, covered businesses in 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 technically must abide by the CMS Rule.

Right, CMS?

Well, it’s unclear because CMS hasn’t updated its website yet.

I guess that enforcement efforts will remain on hold until the Supreme Court opines, which isn’t that far away. Late yesterday, the government filed papers with the Supreme Court to appeal the rulings of the Fifth and Eighth Circuits.

Perhaps I’ll detail these filings on Monday.




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