Appeals Court Reinstates CMS Vaccine Mandate in 26 States

The Fifth Circuit of the U. S. Court of Appeals has removed in 26 states the injunction preventing a federal COVID-19 vaccine mandate from taking effect. The court ruled that the judge who imposed the stay did not have the authority to halt the mandates nationwide, but only in the 14 states that sued.

U.S. District Court Judge Terry Doughty in Louisiana on Nov. 30 ordered a preliminary injunction to stop the implementation of the U.S. Centers for Medicare & Medicaid Services (CMS) vaccine requirement for health care workers. A preliminary injunction is a temporary measure to maintain the status quo until the outcome of a case is decided.

“Principles of judicial restraint control here … ” Fifth Circuit Appellate Judges Leslie Southwick, James Graves and Gregg Costa wrote in their decision. “The district court here gave little justification for issuing an injunction outside the 14 States that brought this suit.”

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The 14 states include Louisiana, Arizona, Alabama, Georgia, Idaho, Indiana, Kentucky, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia.

The judges also noted that some of the states included in the nationwide injunction had supported or endorsed the vaccine mandate, another reason to limit its scope to those 14.

Though the ruling represents a partial victory for the Biden Administration, this doesn’t necessarily signal that the mandate will stand in the long run. The Fifth Circuit did not contradict the substance of Doughty’s injunction, only the jurisdictional applicability.

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“We cannot say that the Secretary has made a strong showing of likely success on the merits,” the judges wrote in their ruling, referring to U.S. Secretary of Health & Human Services Xavier Becerra.

The injunction followed an earlier judgement from a federal court in Missouri that blocked the mandate in 10 states that had sued CMS and President Joe Biden, among others, to prevent the vaccine rule from taking effect. Today’s Fifth Circuit decision does not affect the states involved in the Missouri case.

A vaccine requirement from the U.S. Occupational Safety & Health Administration (OSHA) was also temporarily blocked by the courts. That regulation applies to all companies with 100 or more employees.

The Biden Administration has repeatedly pledged to defend legal challenges to the CMS and OSHA vaccine requirements. Many expect that the U.S. Supreme Court will have the final word.

With the ultimate outcome uncertain, providers are left with the decision of how to proceed with their internal vaccine policies, balancing the risk of losing unvaccinated employees with patient and workplace safety. Providers in some regions are also working to implement state-based regulations.

The National Hospice & Palliative Care Organization has advised providers in public statements to continue to encourage vaccination among staff. The National Association for Home Health & Hospice has told members to be ready to comply with the vaccine mandates in the event that they do survive the court battles.

“It remains possible that the District Court rulings will be reversed and that the original compliance deadlines will be held in place,” NAHC indicated in a statement. “While that outcome is not highly likely, a good faith compliance effort will be the best protection a provider can have against any enforcement action.”

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